US v. Dujuan Thomas, No. 12-4544 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4544 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DUJUAN VINCENT THOMAS, a/k/a Tone, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:11-cr-00093-IMK-JSK-1) Submitted: February 26, 2013 Decided: February 28, 2013 Before MOTZ, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Roger D. Curry, CURRY AMOS & ASSOC., LC, Fairmont, West Virginia, for Appellant. Zelda Elizabeth Wesley, Assistant United States Attorney, Clarksburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: DuJuan Vincent Thomas pleaded guilty pursuant to a written plea agreement to aiding and abetting the distribution of crack cocaine 841(b)(1)(C) appeal, in (2006). counsel He has California, 386 meritorious grounds violation received filed U.S. of 738 a for 21 a appeal, §§ 841(a)(1), 151-month brief (1967), U.S.C. pursuant asserting but sentence. to Anders there raising the are On v. no following issues: (1) whether the district court complied with Fed. R. Crim. P. 11 when it sentence accepted imposed Thomas s by district plea; (2) whether the reasonable. Thomas has filed a pro se supplemental brief. Government declined to file a response. the guilty court and is The We affirm. Because Thomas did not move to withdraw his plea, we review his Rule 11 hearing for plain error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Here, we find no error, as the district court fully complied with Rule 11 when accepting Thomas s plea. Given no indication to the contrary, we therefore find that Thomas s plea was knowing and voluntary, and, consequently, final and binding. See United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc). Next we review Thomas s sentence using an abuse of discretion standard. 552 U.S. 38, 51 (2007). for reasonableness Gall v. United States, The first step in this review requires 2 us to ensure that the district court committed no significant procedural error. (4th Cir. United States v. Evans, 526 F.3d 155, 161 2008). Procedural errors include improperly calculating the advisory Sentencing Guidelines range, failing to consider the sentencing 18 U.S.C. using § 3553(a) clearly (2006) erroneous adequately explain the sentence. sentencing facts, or factors, failing Gall, 552 U.S. at 51. to Only if we find a sentence procedurally reasonable may we consider its substantive reasonableness. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). Thomas received a sentence of 151 months-at the lowest end of the Guidelines range. We discern no basis to conclude that Thomas s Guidelines sentence was either procedurally or substantively unreasonable. Thomas s supplemental brief argued that his attorney was ineffective by stipulating in the plea agreement that Thomas was a career presentence contends offender report s that this and career in failing offender failure rendered to object designation. his plea to He the also involuntary. Thomas had four felony drug trafficking convictions and clearly qualified for the enhancement. The district court was very careful to ensure that Thomas was satisfied with counsel and had no comments or questions pertaining to the presentence report or the sentencing procedures. conclusively appears on No ineffective assistance of counsel the record. 3 See United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Finally, Thomas contends under that he should have been sentenced Guidelines Manual instead of the 2010 Manual. the 2012 The 2010 Manual was used instead of the 2011 edition because the 2011 edition added two provisions that would likely have increased Thomas s Guidelines range. The 2012 manual was not available at the time Thomas was sentenced, nor would it have been proper to use in calculating Thomas s sentence. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Thomas s conviction and sentence. This court requires that counsel inform Thomas, in writing, of the right to petition the Supreme Court of the United States for further review. If Thomas requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Thomas. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 4