US v. Joseph Gray, No. 13-4716 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4716 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSEPH DARNELL GRAY, a/k/a Killa, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:12-cr-00188-FDW-DSC-14) Submitted: February 27, 2014 Decided: March 4, 2014 Before NIEMEYER, KING, and AGEE, Circuit Judges. Affirmed in part, dismissed in part by unpublished per curiam opinion. Mark A. Jones, BELL, DAVIS & PITT, PA, Winston-Salem, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Joseph Darnell Gray pled guilty, pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement, to conspiracy to participate in racketeering activity, in violation of 18 U.S.C. § 1962(d) (2012), and conspiracy to commit murder in aid of racketeering § 1959(a)(5) (2012). activity, in violation of 18 U.S.C. The district court imposed the 180-month sentence specified in the plea agreement. On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating appeal, but voluntary. that there questioning are whether no meritorious Gray s plea grounds for knowing and was Gray was advised of his right to file a pro se supplemental brief, but has not filed one. The Government declined to file a brief. Because Gray did not move in the district court to withdraw his guilty plea, we review the guilty plea hearing for plain error. Cir. 2002). United States v. Martinez, 277 F.3d 517, 525 (4th To establish plain error, [Gray] 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). Even if Gray satisfies these requirements, error correction of the remains within [the court s] discretion, which [the court] should not exercise . . . unless the error seriously affect[s] the fairness, integrity or 2 public reputation of judicial proceedings. quotation marks and citation omitted). Id. (internal Our review of the record leads us to conclude that the district court fully complied with Rule 11 in knowingly accepting and Gray s guilty voluntarily. plea, We which entered affirm therefore Gray Gray s convictions. Subject to narrow exceptions, a defendant who agrees to and receives a particular sentence 11(c)(1)(C), may not appeal that sentence. pursuant to Rule 18 U.S.C. § 3742(a) (2012); United States v. Calderon, 428 F.3d 928, 932 (10th Cir. 2005). In this case, the district court imposed the specified sentence, which did not exceed the statutory maximum. Moreover, the incorrect sentence was not imposed as a result of an application of the Sentencing Guidelines because it was based on the parties agreement and calculation of the Guidelines. not on the district court s United States v. Brown, 653 F.3d 337, 339-40 (4th Cir. 2011); United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005). We therefore dismiss Gray s appeal of his sentence. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. This court requires that counsel inform Gray, in writing, of the right to petition the Supreme Court of the United States for further review. If Gray requests that a petition be filed, but 3 counsel believes that such a petition would be frivolous, then counsel may move representation. in this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Gray. 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 IN PART, DISMISSED IN PART 4
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