United States v. Harris , 200 F. App'x 182 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4718
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GILBERT HARRIS, JR., a/k/a Butchie Huell,
a/k/a Butchie,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-04-762)
Submitted: August 18, 2006 Decided: September 13, 2006
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ray Coit Yarborough, Jr., Florence, South Carolina, for Appellant.
Arthur Bradley Parham, OFFICE OF THE UNITED STATES ATTORNEY,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Pursuant to an amended plea agreement, Gilbert Harris,
Jr., pled guilty to conspiracy to possess with intent to distribute
fifty grams or more of cocaine base and 500 grams or more of
cocaine, in violation of 21 U.S.C. § 846 (2000), and using and
carrying a firearm during a drug trafficking crime, in violation of
18 U.S.C. § 924(c)(1) (2000). The district court sentenced Harris
to 140 months for the drug offense, to be followed by sixty months
for the firearm offense. Harris appeals. His attorney has filed
a brief in accordance with Anders v. California, 386 U.S. 738(1967), stating that there are no meritorious grounds for appeal.
Harris has filed a pro se supplemental brief. We affirm.
In his pro se brief, Harris asserts a number of defects1
in the proceedings. It is well established, however, that a valid
guilty plea waives all antecedent nonjurisdictional defects.
Tollett v. Henderson, 411 U.S. 258, 267 (1973). To the extent that
Harris attacks the voluntary and intelligent character of his plea,
which Tollett permits a defendant to do on appeal, see id., we find
Harris’ claims to be without merit. Our review of the record
discloses substantial compliance with Fed. R. Crim. P. 11. At
arraignment, the district court assured itself that the plea was
informed and knowing. Harris was thirty-seven, had some post-
1
The defects include lack of venue, Fourth Amendment
violations, improprieties in the grand jury proceedings, and
insufficient evidence upon which to convict.
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secondary education, had never been treated for mental illness or
substance abuse, and was not under the influence of drugs or
alcohol. He represented to the court that, other than the plea
agreement, no one had promised him anything in return for his plea.
Nor had anyone threatened him. Harris was fully aware of the
charges against him and the penalties he faced. He expressed
complete satisfaction with his attorney. Finally, Harris admitted
his guilt, and the factual basis for the plea disclosed that there
was ample evidence to convict Harris of each offense.
We conclude that Harris entered an intelligent and
knowing guilty plea.2 Therefore, under Tollett, Harris’ plea
waived his right to raise antecedent nonjurisdictional defects on
appeal.
Harris contends that his sentence violates United
States v. Booker, 543 U.S. 220 (2005). In determining a sentence
post-Booker, a sentencing court is no longer bound by the range
prescribed by the sentencing guidelines. United States v. Hughes,
401 F.3d 540, 546 (4th Cir. 2005). Instead, sentencing courts must
2
In his pro se brief, Harris contends that he attempted to
withdraw his plea at sentencing. However, he made this request
only once--when expressing his concern that guns and drugs seized
from his residence pursuant to a search warrant would affect his
sentence. A fair reading of the sentencing transcript discloses
that the district court correctly treated the matter not as a
request to withdraw the plea, but as an objection to the
presentence report (PSR). After receiving assurances that the guns
and drugs recovered from the residence had no impact on the
sentence, Harris informed the court that he had no further
objections to the PSR.
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consider both the properly calculated guideline range as well as
the factors set forth at 18 U.S.C.A. § 3553(a)(1) (West 2000 &
Supp. 2006). United States v. Green, 436 F.3d 449, 455-56 (4th
Cir.), cert. denied, 126 S. Ct. 2309 (2006). A post-Booker
sentence must be “within the statutorily prescribed range and . . .
reasonable.” Hughes, 401 F.3d at 546-47 (citations omitted). “[A]
sentence within the properly calculated Guidelines range . . . is
presumptively reasonable.” Green, 436 F.3d at 457 (internal
quotation marks and citation omitted).
Harris was statutorily subject to between ten years and
life in prison for the drug offense, see 21 U.S.C. § 841(b)(1)(A)
(2000), and a consecutive sentence of at least five years for the
firearm offense, see 18 U.S.C. § 924(c). His properly calculated
guideline range for the drug offense was 135-168 months. In
imposing sentence, the court took into account “the history and
character of the defendant,” see 18 U.S.C.A. § 3553(a)(1),
including Harris’ work history, age, and lack of criminal past. We
conclude that a sentence of 140 months for the drug offense, to be
followed by a sixty-month sentence for the firearm offense, was
reasonable.
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm. This court requires counsel to inform his
client, in writing, of his right to petition the Supreme Court of
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the United States for further review. If the client requests that
a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy of the motion was served on the client. We deny the motions
to enlarge the record and for a writ of mandamus and dispense with
oral argument because the facts and legal contentions are
adequately set forth in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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