United States v. Gardner ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4339
LEROY GARDNER, a/k/a Chris Alex
Steward,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
G. Ross Anderson, Jr., District Judge.
(CR-96-15)
Submitted: May 19, 1998
Decided: June 26, 1998
Before LUTTIG and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Landon Dwight Long, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Marshall Prince, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Leroy Gardner appeals his conviction and sentence for his role in
a conspiracy to possess with the intent to distribute cocaine and
cocaine base in the form of crack cocaine. See 21 U.S.C. §§ 841(a)(1)
& 846 (1994). Gardner noted a timely appeal and his attorney filed
a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967),
in which he represents that there are no arguable issues of merit in
this appeal. Nonetheless, counsel presented this court with two
nascent issues. The time for filing a supplemental brief has passed and
Gardner has not responded. Because we find each claim raised by
counsel to be without merit and can discern no other error in the
record on appeal, we affirm Gardner's conviction and sentence.
Gardner contends that the district court improperly conducted the
Rule 11 hearing in accepting his guilty plea. "In reviewing the ade-
quacy of compliance with Rule 11, this Court should accord defer-
ence to the trial court's decision as to how best to conduct the
mandated colloquy with the defendant." United States v. DeFusco,
949 F.2d 114, 116 (4th Cir. 1991). Moreover, any Rule 11 violation
would be evaluated under the harmless error standard. See Fed. R.
Crim. P. 11(h); see also DeFusco, 949 F.2d at 117. As a result, this
court may vacate a conviction resulting from a guilty "plea only if the
trial court's violations of Rule 11 affected the defendant's substantial
rights." DeFusco, 949 F.2d at 117.
In this case, the district court conducted a thorough hearing, insur-
ing that Gardner understood the rights that he would forego by plead-
ing guilty, the elements of the charge to which he was pleading guilty,
the penalties he faced, the effect of supervised release, the impact of
the sentencing guidelines, and the effect of the plea agreement. Fur-
ther, the court ascertained that Gardener's plea was voluntary and that
a factual basis existed for his plea. We find that the district court fully
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complied with Rule 11 and that this claim is without merit. See id. at
116-17.
Gardner's attorney next raises as a potential claim that the district
court erroneously applied the sentencing guidelines or otherwise
imposed sentence in violation of law. However, Gardner's failure to
object during sentencing amounts to a waiver of his right to raise that
issue on appeal absent plain error. See United States v. Ford, 88 F.3d
1350, 1355 (4th Cir.), cert. denied, 65 U.S.L.W. 3369 (U.S. Nov. 18,
1996) (No. 96-6379). There is no evidence of error of that magnitude
in the record which would warrant our review of Gardner's sentence.
As required by Anders, we have independently reviewed the entire
record and all pertinent documents. We have considered all possible
issues presented by this record and conclude that there are no non-
frivolous grounds for this appeal. Pursuant to the plan adopted by the
Fourth Circuit Judicial Council in implementation of the Criminal
Justice Act of 1964, 18 U.S.C. § 3006A (1994), this court requires
that counsel inform his client, in writing, of his right to petition the
Supreme Court for further review. If requested by his client to do so,
counsel should prepare a timely petition for writ of certiorari. We dis-
pense 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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