US v. Demetrious McWhite, No. 14-4279 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4279 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DEMETRIOUS ANTONIO MCWHITE, Defendant -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-00447-RBH-1) Submitted: July 14, 2014 Before GREGORY Circuit Judge. and WYNN, Decided: Circuit Judges, and August 5, 2014 DAVIS, Senior Affirmed in part; dismissed in part by unpublished per curiam opinion. Ray Coit Yarborough, Jr., LAW OFFICE OF RAY COIT YARBOROUGH, JR., Florence, South Carolina, for Appellant. Alfred William Walker Bethea, Jr., Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Demetrious Antonio McWhite pled guilty pursuant to a plea agreement to one count of conspiracy to possess with intent to distribute and distribute five kilograms or more of cocaine and 280 grams or more of cocaine base, in violation of 21 U.S.C. § 846 (2012). The parties stipulated in the plea agreement to a 170-month prison sentence. See Fed. R. Crim. P. 11(c)(1)(C). The district court accepted McWhite s guilty plea pursuant to the plea agreement and sentenced him to 170 months imprisonment. On appeal, McWhite s 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 complied with Fed. R. Crim. P. 11 in accepting McWhite s guilty plea and whether the 170-month prison sentence is reasonable. McWhite 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. We affirm in part and dismiss in part. Because McWhite 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. Martinez, 277 F.3d 517, 524 27 (4th Cir. 2002). United States v. To demonstrate plain error, a defendant must show: (1) there was error; (2) the 2 error was rights. In the plain; and United guilty (3) States plea the v. error Olano, context, a affected 507 U.S. defendant his substantial 725, meets 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 the to transcript conclude of that the the guilty district plea court substantially complied with the mandates of Rule 11 in accepting McWhite s guilty plea and that the court s omissions did not affect McWhite s substantial rights. reveals that supported by the an district independent court basis Critically, the transcript ensured in that fact, the and plea that was McWhite entered the plea knowingly and voluntarily with an understanding of the consequences. 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 McWhite s guilty plea. Counsel prison sentence also is jurisdiction to guilty pursuant plea questions reasonable. review to this Fed. whether We conclude challenge. R. McWhite s Crim. that McWhite P. 170-month we entered 11(c)(1)(C). lack his The federal statute governing appellate review of a sentence limits 3 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 the in violation application of of district court law . . . [or] as the [S]entencing imposed a result the sentence an incorrect of [G]uidelines. 18 U.S.C. § 3742(a)(1)-(2), (c) (2012); United States v. Sanchez, 146 F.3d 796, 797 & n.1 (10th Cir. 1998) (concerning Rule 11(e)(1)(C), the predecessor 170-month provision sentence does to not Rule 11(c)(1)(C)). McWhite s the statutory exceed applicable maximum, see 21 U.S.C. § 841(b)(1)(A), was not based upon the Sentencing Guidelines, and was the sentence for which he had bargained. See United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005) ( A sentence imposed under a Rule 11(c)(1)(C) plea arises directly from the agreement itself, not from the Guidelines. ). Review of McWhite s 170-month sentence is thus precluded by 18 U.S.C. § 3742(c). Finally, in accordance with Anders, we have reviewed the remainder of the record in this case and have found no meritorious issues for appeal. We therefore affirm McWhite s conviction and dismiss the appeal of his sentence. This court requires that counsel inform McWhite, in writing, of the right to petition the Supreme Court of the United States for further review. If McWhite requests that a petition be filed, but counsel believes that such a petition would be frivolous, then 4 counsel may move representation. in this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on McWhite. 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 5
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