US v. Omar Phillips, No. 14-4156 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4156 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. OMAR PHILLIPS, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:13-cr-00314-RBH-1) Submitted: September 18, 2014 Decided: September 29, 2014 Before MOTZ, AGEE, and THACKER, Circuit Judges. Affirmed in part and dismissed in part by unpublished per curiam opinion. Kimberly H. Albro, FEDERAL PUBLIC DEFENDER S OFFICE, Columbia, South Carolina, for Appellant. Arthur Bradley Parham, Assistant United States Attorney, Florence, South Carolina; Stanley D. Ragsdale, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Pursuant to his written plea agreement, Omar Phillips pled guilty to conspiracy to distribute 28 grams or more of crack cocaine and 500 grams or more of cocaine, in violation of 21 U.S.C. (2012). § 841(a)(1), (b)(1)(B) (2012) and 21 U.S.C. § 846 Phillips had negotiated an agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C), in which the parties stipulated that a 188-month sentence was appropriate. After reviewing the presentence report, the court accepted the plea and imposed the stipulated sentence. This appeal timely followed. Phillips counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), averring that there are no meritorious appellate issues conviction and sentence. but seeking review of the Counsel notes, in the alternative, that we lack jurisdiction to review Phillips sentence because it was the result of a Rule 11(c)(1)(C) plea agreement. Although advised of his right to do so, Phillips has not filed a supplemental brief. The Government has not filed a response. Finding no error, we affirm in part and dismiss in part. Where, as here, a defendant has not moved to withdraw his guilty plea, we review his plea hearing for plain error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). To prevail under this standard, Phillips must establish that an error occurred, this error was plain, and that it affected his 2 substantial rights. United States v. Massenburg, 564 F.3d 337, 342 43 (4th Cir. 2009). Our review of the record confirms that the district court fully complied with the mandates of Fed. R. Crim. P. guilty 11, and ensuring that his that guilty Phillips plea was was competent knowing, supported by an independent basis in fact. to plead voluntary, and We therefore affirm Phillips conviction. Further, we agree with counsel jurisdiction to review Phillips sentence. that we lack As the Tenth Circuit has explained, the federal statute governing appellate review of a sentence, see 18 U.S.C. § 3742(a), (c) (2012), limits the circumstances under which a defendant may appeal a sentence to which he stipulated in a Rule 11(c)(1)(C) plea agreement to claims that his sentence was (1) imposed in violation of the law, (2) imposed as a result of an incorrect application of the Guidelines, or (3) is greater than the sentence set forth in the plea agreement. (10th Cir. Phillips maximum United States v. Calderon, 428 F.3d 928, 932 2005). sentence of forty None was of less years these than exceptions the apply applicable imprisonment, see here. statutory 21 U.S.C. § 841(b)(1)(B), and was precisely what he and the Government agreed was appropriate. as a result of an Moreover, the sentence was not imposed incorrect application of the Sentencing Guidelines because it was based on the parties agreement not 3 on the district court s calculation of the Guidelines. See 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). Accordingly, review of Phillips sentence is precluded by § 3742(c)(1). In accordance with Anders, we have reviewed the entire record and have found no meritorious issues for appeal. We therefore affirm Phillips conviction and dismiss this appeal as to his sentence. We deny Phillips motion for the preparation of transcripts at Government expense. This court requires that counsel inform Phillips, in writing, of his right to petition the Supreme Court of the United States for further review. If Phillips 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 Phillips. legal before We dispense with oral argument because the facts and 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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