US v. Leonardo Wells

Filing 920090316

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4571 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEONARDO WELLS, a/k/a Lee, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (1:06-cr-00128-JFM-1) Submitted: February 20, 2009 Decided: March 16, 2009 Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Donald Kaplan, Baltimore, Maryland, for Appellant. James Thomas Wallner, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: In accordance with a plea agreement, Leonardo Wells pled guilty to conspiracy to distribute 500 grams or more of cocaine. He was sentenced to 108 months in prison. Wells now appeals. His attorney has filed a brief pursuant to Anders v. California, indictment concluding 386 was that U.S. 738 (1967), and no the questioning sentence whether the but defective there are reasonable for meritorious issues appeal. Wells has filed a pro se supplemental brief. We affirm. Wells stipulated in his plea agreement that "it was reasonably conspiracy foreseeable distributed to and the Defendant . . the . that intent the to possessed with distribute 5 kilograms but less than 15 kilograms of cocaine." He contends on appeal that the indictment should have specifically charged him with this amount of the drug. Defects United States v. in an indictment 535 U.S. are 625, not 631 jurisdictional. (2002). Further, Cotton, Wells' valid guilty plea waived this claimed non-jurisdictional defect. See Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993). Wells also claims that his sentence must be vacated because the district court stated at sentencing that his offense level was 29. is clear that Based on the totality of the record, however, it the court simply 2 misspoke. First, the plea agreement forecast that Wells' base offense level would be 32, two levels would be added based on his role in the offense, and three levels subtracted based on acceptance of responsibility. These calculations yield a total offense level of 31. Second, at the Fed. R. Crim. P. 11 hearing, the district court repeated these calculations and added that they brought "the guidelines . . . to a 31." * Finally, the court stated at sentencing that 108 months was "at the low end" of the guideline range of 108-135 months; had the total offense level been 29, 108 months would have been the top of the range. Finally, procedurally and we conclude that Wells' He sentence was was substantively reasonable. sentenced See 21 within the statutory range of five to forty years. U.S.C. 841(b)(1)(B) (2006). was correctly calculated, Additionally, his guideline range the guidelines were treated as advisory, the district court considered the 18 U.S.C. 3553(a) (2006) factors, and the court adequately stated its reasons for imposing sentence. See Gall v. United States, 128 S. Ct. 586, 597 (2007); United States v. Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007). We have examined the entire record in this case in accordance * with the requirements of Anders, and we find no Wells was in criminal history category I. 3 meritorious issues for appeal. Accordingly, we affirm. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further filed, review. but If the client requests such a that a petition would be be counsel believes that petition frivolous, counsel may move in this court for leave to withdraw from representation. Counsel=s motion must state that a copy of We dispense with oral the motion was served on the client. 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 4

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