United States v. Omar Phillips , 583 F. App'x 282 ( 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  •                              UNPUBLISHED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    Affirmed in part and dismissed in part by unpublished per curiam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    Unpublished opinions are not binding precedent in this circuit.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. § 841
    (a)(1),      (b)(1)(B)      (2012)   and     
    21 U.S.C. § 846
    (2012).     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       but   seeking      review     of     the
    conviction and sentence.              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
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    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.   11,     ensuring        that    Phillips         was    competent         to   plead
    guilty     and      that   his    guilty      plea       was    knowing,     voluntary,          and
    supported by an independent basis in fact.                             We therefore affirm
    Phillips’ conviction.
    Further,         we     agree           with     counsel      that        we     lack
    jurisdiction to review Phillips’ sentence.                             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.”           United States v. Calderon, 
    428 F.3d 928
    , 932
    (10th     Cir.      2005).           None     of       these     exceptions      apply        here.
    Phillips’        sentence        was    less       than        the    applicable         statutory
    maximum        of     forty          years’        imprisonment,          see       
    21 U.S.C. § 841
    (b)(1)(B), and was precisely what he and the Government
    agreed was appropriate.                Moreover, the sentence was not imposed
    as    a   result      of   an     incorrect            application      of   the    Sentencing
    Guidelines because it was based on the parties’ agreement — not
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    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.      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 IN PART;
    DISMISSED IN PART
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