US v. Gary Davis, Jr., No. 13-4061 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4061 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GARY DAVIS, JR., Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Cameron McGowan Currie, District Judge. (0:12-cr-00331-CMC-1) Submitted: June 24, 2013 Decided: July 11, 2013 Before WILKINSON, SHEDD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. James P. Rogers, Assistant Federal Public Defender, Columbia, South Carolina, for Appellant. William Kenneth Witherspoon, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gary Davis, Jr., pled guilty pursuant to a written plea agreement to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006). The district court sentenced Davis to 180 months in prison, the mandatory minimum sentence required by 18 U.S.C. § 924(e) (2006). On appeal, counsel for Davis filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious issues for appeal but questioning whether the district court conducted an adequate plea colloquy and whether Davis sentence is reasonable. Davis has not filed a supplemental pro se brief, despite notice of his right to do so. We affirm. Prior to accepting a guilty plea, a trial court, through colloquy with the defendant, must inform the defendant of, and determine that the defendant understands, the nature of the charge to which the plea is offered, any mandatory minimum penalty, the maximum possible penalty he faces, and the various rights he is relinquishing by pleading guilty. 11(b)(1). The district court also must Fed. R. Crim. P. ensure that the defendant s plea was voluntary, was supported by a sufficient factual basis, and did not result from force or threats. R. Crim. P. 11(b)(2), (3). In reviewing the Fed. adequacy of compliance with Rule 11, this [c]ourt should accord deference to 2 the trial mandated court s decision colloquy with as the to how best defendant. to conduct United the States v. court to DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). Because Davis did not move the district withdraw his guilty plea, any errors in the Rule 11 hearing are reviewed for plain error. United States v. Martinez, 277 F.3d 517, 525 26 (4th Cir. 2002). To establish plain error, [Davis] must show that an error occurred, that the error was plain, and that the error affected his substantial rights. United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Davis satisfies correct error the these error, seriously requirements, which affects we we should the not fairness, reputation of judicial proceedings. marks and brackets omitted). to conclude that the retain Even if discretion exercise unless integrity or to the public Id. (internal quotation Our review of the record leads us district court conducted a thorough colloquy, ensuring that Davis plea was knowing and voluntary and supported by an adequate factual basis. At sentencing, Davis objected to his designation as an armed career criminal based on the fact that he was convicted of two of the predicate offenses on the same day. However, the crimes for which he was convicted were committed on occasions different distinct from one criminal another, arising episode[s], such 3 out that of the separate district and court properly overruled the objection. States v. Moreover, Letterlough, the sentence. district 63 F.3d court 18 U.S.C. § 924(e); United 332, 335 adequately (4th 1995). the chosen explained See United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). conclude Our review of the record therefore leads us to that Davis within-Guidelines sentence procedurally nor substantively unreasonable. States, Cir. 552 U.S. 38, 51 (2007); United was neither See Gall v. United States v. Mendoza Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court s judgment. This court requires that counsel inform Davis, in writing, of the right to petition the Supreme Court of the United States for further review. If Davis requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in representation. this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Davis. We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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