US v. Joshua Gant, Jr., No. 15-4324 (4th Cir. 2016)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4324 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSHUA GANT, JR., Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., Senior District Judge. (1:14-cr-00437-JAB-1) Submitted: November 24, 2015 Before NIEMEYER Circuit Judge. and MOTZ, Decided: Circuit Judges, and January 5, 2016 DAVIS, Senior Affirmed by unpublished per curiam opinion. Stephen F. Wallace, WALLACE LAW FIRM, High Point, North Carolina, for Appellant. Randall Stuart Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Joshua Gant, Jr., pled guilty pursuant to a written plea agreement to one count of distribution of a mixture and substance containing a detectable amount of cocaine base, in violation district months. of 21 court U.S.C. imposed § 841(a)(1), a (b)(1)(C) within-Guidelines (2012). sentence The of 24 In accordance with Anders v. California, 386 U.S. 738 (1967), Gant’s counsel has filed a brief certifying that there are no meritorious issues for appeal, but suggesting that the court review the reasonableness of Gant’s sentence. Gant has filed a pro se supplemental brief arguing that (1) the district court lacked jurisdiction over his offense because it occurred entirely within North Carolina; (2) his sentence is substantively unreasonable; and (3) his sentence is contrary to United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). Turning first to the validity of Gant’s guilty plea, to assure that a defendant’s plea is knowing and voluntary, Fed. R. Crim. P. 11 requires a district court to “inform the defendant of, and determine that he understands, the nature of the charge(s) to which the plea is offered, any mandatory minimum penalty, the maximum possible penalty and various rights.” United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). Where, as here, a defendant did not move to withdraw his guilty 2 plea, we review the plea hearing for plain error. States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014). United A defendant can only satisfy the plain error standard if he shows that, but for an error by the district court during the Rule 11 proceeding, there is a reasonable probability that he would not have entered his plea. United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009). the district court Our review of the record reveals that substantially complied with Rule 11 by ensuring that Gant was competent to plead guilty and that he knowingly and consultation voluntarily with counsel. entered We his further guilty plea after conclude that Gant’s argument that the district court lacked jurisdiction to take his guilty plea is without merit as Congress, pursuant to its Commerce Clause power, may regulate the intrastate possession of a controlled substance where there is an interstate market for the controlled substance. Gonzales v. Raich, 545 U.S. 1, 17-22 (2005). We review a sentence for reasonableness, applying an abuse of discretion standard. (2007). if the Gall v. United States, 552 U.S. 38, 46 We first review for significant procedural error, and sentence substantive is free reasonableness. from such Id. at error, 51. we then consider Procedural error includes improperly calculating the Sentencing Guidelines range, treating the Guidelines as mandatory, failing to consider the 18 3 U.S.C. § 3553(a) (2012) factors, explain the selected sentence. and Id. failing to adequately Substantive reasonableness is determined by considering the totality of the circumstances, and if the sentence imposed falls within or below the properlycalculated Guidelines reasonableness. Cir. 2012). range, we apply a presumption of United States v. Susi, 674 F.3d 278, 289 (4th Our procedural error presumption of review nor of the anything reasonableness record reveals overcoming that neither the accompanies a applicable the district court’s imposition of a within-Guidelines sentence. * In accordance with Anders, we have reviewed the entire 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 Gant, in writing, of the right to petition the Supreme Court of the United States for further review. If Gant requests that a petition be filed, but 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 Gant. * Where Gant was neither subject to a mandatory minimum penalty nor a sentencing enhancement, no rule of law established in United States v. Simmons, 649 F.3d 237, is applicable to his sentence. 4 We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 5
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