United States v. Daniel Oglesby , 496 F. App'x 270 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4182
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DANIEL OGLESBY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Irene C. Berger,
District Judge. (5:09-cr-00239-1)
Submitted: October 17, 2012 Decided: October 31, 2012
Before WYNN, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Troy Nino Giatras, GIATRAS LAW FIRM, LLP, Charleston, West
Virginia, for Appellant. John Lanier File, Assistant United
States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Oglesby appeals the district court’s judgment
imposing a 151-month sentence following his guilty plea to
possession with intent to distribute marijuana for remuneration
and distribution of a quantity of cocaine, in violation of 21
U.S.C. § 841(a)(1) (2006). On appeal, counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
certifying that there are no meritorious issues for appeal but
questioning the validity of Oglesby’s guilty plea and the
reasonableness of his sentence. Oglesby was informed of his
right to file a pro se supplemental brief but has not done so.
We affirm.
Prior to accepting a plea, the trial court must
conduct a plea colloquy in which it informs the defendant of,
and determines that the defendant comprehends, the nature of the
charge to which he is pleading guilty, any mandatory minimum
penalty, the maximum possible penalty he faces, and the rights
he is relinquishing by pleading guilty. Fed. R. Crim. P.
11(b)(1); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir.
1991). The district court also must ensure that the plea was
supported by an independent factual basis, was voluntary, and
did not result from force, threats, or promises not contained in
the plea agreement. Fed. R. Crim. P. 11(b)(2), (3).
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Because Oglesby did not seek to withdraw his guilty
plea in the district court or otherwise preserve any alleged
Rule 11 error by timely objection, we review his plea colloquy
for plain error. United States v. Martinez, 277 F.3d 517, 525
(4th Cir. 2002). To establish plain error, Oglesby must
demonstrate that the district court erred, the error was plain,
and it affected Oglesby’s substantial rights. United States v.
Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009).
We conclude that the district court substantially
complied with the requirements of Rule 11 in conducting
Oglesby’s plea colloquy. Importantly, the court ensured that
Oglesby’s plea was knowing and voluntary and supported by an
independent factual basis. We accordingly conclude that while
the district court did not comply exactingly with Rule 11 in
conducting the colloquy, see Fed. R. Crim. P. 11(b)(1)(D), (N),
its minor errors, to which no exception has ever been noted, did
not affect Oglesby’s substantial rights. See Massenburg, 564
F.3d at 343 (discussing substantial rights in Rule 11 context).
Turning to Oglesby’s sentence, we review a sentence
for reasonableness, applying a deferential abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). We
must first ensure that the district court committed no
significant procedural error, such as improper calculation of
the Guidelines range, insufficient consideration of the 18
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U.S.C. § 3553(a) (2006) factors and the parties’ sentencing
arguments, and inadequate explanation of the sentence imposed.
United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). If
the sentence is free from significant procedural error, we also
review the substantive reasonableness of the sentence. Id. The
sentence imposed must be “sufficient, but not greater than
necessary, to comply with the purposes” of sentencing. 18
U.S.C. § 3553(a). A within-Guidelines sentence is presumed
reasonable on appeal, and the defendant bears the burden to
“rebut the presumption by demonstrating that the sentence is
unreasonable when measured against the § 3553(a) factors.” See
United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.
2006) (internal quotation marks omitted).
We conclude that the district court imposed a
procedurally and substantively reasonable sentence. The court
correctly concluded that Oglesby’s prior convictions qualified
as predicate offenses for purposes of the career offender
enhancement, see U.S. Sentencing Guidelines Manual §§ 4B1.1,
4B1.2 (2010), and properly calculated Oglesby’s applicable
Guidelines range. The court addressed the parties’ arguments,
made detailed findings on the record, and articulated the basis
for the sentence it imposed, grounded in the § 3553(a) factors.
Finally, we conclude that neither Oglesby nor the available
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record rebuts the presumption of reasonableness accorded his
within-Guidelines sentence. See Montes-Pineda, 445 F.3d at 379.
In accordance with 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 Oglesby, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Oglesby 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 Oglesby.
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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