US v. John Lattaker

Filing 920090114

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4631 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN LYNN LATTAKER, a/k/a Edward Miller, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:07-cr-00094-RJC-1) Submitted: December 23, 2008 Decided: January 14, 2009 Before MOTZ, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Mark P. Foster, Jr., LAW OFFICES OF MARK FOSTER, PC, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: John agreement to Lynn two Lattaker counts pled of guilty pursuant affecting to a plea robbery interstate commerce, in violation of 18 U.S.C. 1951 (2006), one count of brandishing a firearm during a crime of violence, in violation of 18 U.S.C. 924(c) (2006), and one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. 922(g) (2006). As part of the plea agreement, Lattaker waived his right to challenge his conviction and sentence on direct appeal, except for claims of prosecutorial misconduct or ineffective assistance of counsel. The district court sentenced Lattaker to Lattaker's counsel has filed a brief 360 months' imprisonment. pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal. a pro se supplemental brief raising several Lattaker filed issues. The Government does not seek to enforce the plea agreement's appeal waiver. Finding no error, we affirm. Because the Government has not sought to enforce Lattaker's appellate waiver, we need not consider whether the waiver is dispositive of this appeal. See United States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000) (declining to consider an appeal waiver that arguably barred the appeal on one issue because the Government had expressly elected not to argue waiver with regard to that issue); cf. United States v. Blick, 408 F.3d 162, 168-69 (4th Cir. 2005) (enforcing a plea agreement's appeal waiver where the Government sought enforcement, the issues raised fell within the waiver's scope, (Continued) 2 In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for review. Our review of the transcript of the plea hearing leads us to conclude that the district court substantially complied with the mandates of Fed. R. Crim. P. 11 in accepting Lattaker's guilty plea and that the court's omissions Critically, did the not affect Lattaker's substantial rights. transcript reveals that the district court ensured the plea was supported by an independent factual basis and that Lattaker entered the plea knowingly and voluntarily with an understanding of the consequences. See United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). Turning to Lattaker's sentence, we review a criminal sentence standard. for reasonableness, applying an abuse of discretion Gall v. United States, 128 S. Ct. 586, 594-97 (2007); We must any We United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008). first determine whether the district court committed "significant procedural error." Gall, 128 S. Ct. at 597. then consider the substantive reasonableness of the sentence, and may apply a presumption of reasonableness to a sentence within the Guidelines range. Go, 517 F.3d at 218. We find that and no claim was present that the obligations under the plea agreement). Government breached its 3 the district court's imposition of a 360-month sentence, a sentence within the properly calculated Guidelines range, was reasonable. We find further that none of the issues in Lattaker's pro se supplemental brief raise meritorious issues for appeal. We therefore affirm the district court's judgment. This court requires counsel to 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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