US v. Johnny Byrd, No. 13-4485 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4485 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHNNY ARTHUR BYRD, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Richard M. Gergel, District Judge. (2:12-cr-00797-RMG-1) Submitted: January 9, 2014 Before AGEE and Circuit Judge. FLOYD, Circuit Decided: Judges, and January 17, 2014 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Beattie B. Ashmore, BEATTIE B. ASHMORE, P.A., Greenville, South Carolina, for Appellant. Nathan S. Williams, Assistant United States Attorney, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnny Arthur Byrd pled guilty pursuant to a plea agreement to one count of possession with intent to distribute marijuana and aiding and abetting, in violation of 18 U.S.C. §§ 2, 841(a)(1), (b)(1)(D) (2012), and one count of using and carrying a firearm during and in relation to and possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 2, 924(c)(1) (2012). The district court calculated Byrd s Guidelines range on the marijuana count at twenty-seven to thirty-three months imprisonment and Guidelines sentence on the firearm count at a consecutive term of sixty months imprisonment, U.S. Sentencing Guidelines Manual (2012), and sentenced Byrd to thirty-three months imprisonment on the marijuana count and a consecutive term of sixty months imprisonment on the firearm count. On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal, but raising as issues for review whether the district court reversibly erred in accepting Byrd s guilty sentence. plea and abused its discretion in imposing Byrd was informed of his right to file a pro se supplemental brief, but he has not done so. The Government declined to file a brief and does not seek to enforce the appeal waiver in Byrd s plea agreement. We affirm. 2 Because Byrd did not move in the district court to withdraw his guilty plea, the adequacy of the Fed. R. Crim. P. 11 hearing is reviewed for plain error only. United States v. Martinez, 277 F.3d 517, 524 26 (4th Cir. 2002). To demonstrate plain error, a defendant must show: (1) there was error; (2) the error was rights. In the plain; United guilty and (3) States plea the v. error Olano, context, a affected 507 U.S. defendant his 725, meets substantial 732 his (1993). burden to establish that a plain error affected his substantial rights by showing a reasonable probability that he would not have pled guilty but for the district court s Rule 11 omissions. United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009). Our hearing review leads us of to the transcript conclude that of the the guilty district plea court substantially complied with the mandates of Rule 11 in accepting Byrd s guilty plea and that the court s omissions did not affect Byrd s substantial rights. Critically, the transcript reveals that the district court ensured that the plea was supported by an independent basis in fact, and that Byrd entered the plea knowingly and consequences. voluntarily with an understanding of the United States v. DeFusco, 949 F.2d 114, 116, 120 (4th Cir. 1991). Accordingly, we discern no plain error in the district court s acceptance of Byrd s guilty plea. 3 Turning standard. This procedural a deferential entails and 51. consider sentence, we review it for abuse-of-discretion Gall v. United States, 552 U.S. 38, 41, 51 (2007). review Id. at Byrd s under reasonableness to substantive In whether defendant s appellate reasonableness determining the advisory consideration procedural district court Guidelines of both the the sentence. reasonableness, properly range, of gave calculated the parties we the an opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012) factors, selected a sentence based on clearly erroneous facts, and sufficiently explained the selected sentence. Id. at 49 51. If the sentence is free of significant procedural error, we review it for substantive reasonableness, tak[ing] into account the totality of the circumstances. If the sentence is within the properly calculated Id. at 51. Guidelines range, we apply a presumption on appeal that the sentence is substantively reasonable. 289 (4th Cir. 2012). United States v. Susi, 674 F.3d 278, Such a presumption is rebutted only if the defendant shows that the sentence is unreasonable when measured against the § 3553(a) factors. 445 F.3d 375, 379 (4th Cir. United States v. Montes-Pineda, 2006) omitted). 4 (internal quotation marks In this case, the district court correctly calculated and considered the advisory Guidelines range and sentence and heard argument from counsel and allocution from Byrd. The court explained that the sentence of ninety-three months imprisonment was warranted in light of the nature and circumstances of Byrd s offense conduct, his history and characteristics, and the need for the sentence to reflect the seriousness of Byrd s offense conduct, to promote respect for the law, to provide just punishment, and to protect the public from further crimes by Byrd. Byrd does not offer any grounds to rebut the presumption on appeal that his within-Guidelines sentence is substantively reasonable. Accordingly, we conclude that the district court did not abuse its discretion in sentencing Byrd. Finally, in accordance with Anders, we have reviewed the remainder of the record in this case and have found no meritorious issues for appeal. court s judgment. We therefore affirm the district This court requires that counsel inform Byrd, in writing, of the right to petition the Supreme Court of the United States for further review. If Byrd 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 Byrd. 5 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 6
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