United States v. Barrett , 364 F. App'x 814 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4600
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL ANTHONY BARRETT, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00398-JAB-1)
Submitted: January 25, 2010 Decided: February 12, 2010
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, William C. Ingram,
First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Graham Tod Green, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Anthony Barrett, Jr., pled guilty to one count
of possession of a firearm by a convicted felon, in violation of
18 U.S.C. §§ 922(g)(1), 924(e) (2006). He was found to be an
armed career criminal under the Armed Career Criminal Act, 18
U.S.C. § 924(e), and U.S. Sentencing Guidelines Manual § 4B1.4
(2008), and was sentenced to 220 months’ imprisonment. He now
appeals. 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 questioning whether Barrett’s
sentence is reasonable. Barrett has filed a pro se supplemental
brief in which he asserts that his guilty plea was not knowingly
and voluntarily made, that the district court committed
procedural error in imposing his sentence, and that his counsel
rendered ineffective assistance. We affirm.
Because Barrett did not move in the district court to
withdraw his guilty plea, his challenge to the adequacy of the
Fed. R. Crim. P. 11 hearing is reviewed for plain error. See
United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).
Our review of the transcript of the plea hearing leads us to
conclude that the district court substantially complied with the
mandates of Rule 11 in accepting Barrett’s guilty plea and that
the court’s omissions did not affect Barrett’s substantial
rights. Critically, the transcript reveals that the district
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court ensured the plea was supported by an independent factual
basis and that Barrett entered the plea knowingly and
voluntarily with an understanding of the consequences. See
United States v. DeFusco, 949 F.2d 114, 116, 119-20
(4th Cir. 1991).
Turning to Barrett’s sentence, we review it for
reasonableness, applying an abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 41 (2007). In conducting
this review, we must first examine the sentence for “significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a)
[(2006)] factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.” Id. at 51. When “rendering a sentence, the district
court must make an individualized assessment based on the facts
presented,” applying the “relevant § 3553(a) factors to the
specific circumstances of the case before it.” United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation
marks and emphasis omitted). The district court must also
“state in open court the particular reasons supporting its
chosen sentence” and “set forth enough to satisfy” this court
that it has “considered the parties’ arguments and has a
reasoned basis for exercising [its] own legal decisionmaking
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authority.” Id. (internal quotation marks omitted). The
district court, however, is not required to “robotically tick
through § 3553(a)’s every subsection.” United States v.
Johnson, 445 F.3d 339, 345 (4th Cir. 2006).
If the sentence is free of procedural error, we then
consider the substantive reasonableness of the sentence, taking
into account the totality of the circumstances. Gall, 552 U.S.
at 51. If the sentence is within the appropriate Guidelines
range, this court applies a presumption on appeal that the
sentence is reasonable. See United States v. Go, 517 F.3d 216,
218 (4th Cir. 2008).
We conclude that the district court did not commit
procedural or substantive error in sentencing Barrett. The
district court properly calculated and treated as advisory the
Guidelines’ imprisonment range of 188 to 235 months. The court
heard argument from the parties on the appropriate sentence and
gave Barrett an opportunity to allocute. The court considered
the relevant § 3553(a) factors, addressing on the record the
nature and circumstances of the offense, Barrett’s history and
characteristics, and the need for the sentence to protect the
public. Further, neither counsel nor Barrett offers any grounds
to rebut the presumption on appeal that the within-Guidelines
sentence of 220 months’ imprisonment is reasonable.
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Finally, Barrett’s claim that counsel rendered
ineffective assistance is more appropriately considered in a
post-conviction proceeding brought pursuant to 28 U.S.C.A.
§ 2255 (West Supp. 2009), unless counsel’s alleged deficiencies
conclusively appear on the record. See United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Because we find
no conclusive evidence on the record that counsel rendered
ineffective assistance, we decline to consider this claim on
direct appeal.
As required by Anders, we have reviewed the 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 Barrett, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Barrett 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 Barrett.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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