US v. Graham Sipe

Filing 920100419

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4829 UNITED STATES OF AMERICA, Plaintiff Appellee, v. GRAHAM PAGE SIPE, Defendant Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:06-cr-00133-JAB-2) Submitted: March 31, 2010 Decided: April 19, 2010 Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. James Darren Byers, LAW OFFICE OF J. DARREN BYERS, P.A., Winston-Salem, North Carolina, for Appellant. Paul Alexander Weinman, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Graham agreement 2113 prison. to Page Sipe pled guilty in to pursuant of to 21 a plea armed and bank was robbery, sentenced violation U.S.C. in (2006), sixty-three months Counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), stating that after a review of the record, he has found no meritorious whether issues Sipe's for appeal. is Counsel nonetheless questions sentence reasonable. Sipe has not filed a pro se supplemental brief despite receiving notice that he may do so, and the Government declined affirm. In the absence of a motion to withdraw a guilty plea, we review the adequacy of a guilty plea pursuant to Fed. R. Crim. P. 11 for plain error. United States v. Martinez, to file a responsive brief. Finding no error, we 277 F.3d 517, 525 (4th Cir. 2002). A review of Sipe's Rule 11 hearing reveals that the district court complied with Rule 11's requirements. intelligently Sipe's made, plea was knowingly, of voluntarily, the and with full knowledge consequences attendant to his guilty plea. We therefore find that no plain error occurred and affirm Sipe's conviction. We also find no error, plain or otherwise, with regard to Sipe's sentence and therefore affirm that sentence. presentence investigation report 2 properly placed him Sipe's in a category offense I criminal of history and attributed a him with a total of the level to twenty-six, seventy-eight yielding months. Guidelines At range sixty-three district departure sentencing, for a court based considered on Sipe's counsel's alleged motion downward but diminished capacity, reasonably concluded that the circumstances of Sipe's offense rendered him ineligible for a downward departure. The district court offered Sipe an opportunity to allocute and considered the 18 U.S.C. 3553(a) (2006) factors before imposing Sipe's sentence. We find that the district court appropriately treated the Guidelines as advisory, adequately explained its rationale for imposing Sipe's sentence, and that the reasons relied upon by the district court were individualized, plausible, and justified the sentence imposed. See United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (recognizing that the district court must "place on the record an individualized assessment based on the particular facts of the case before it" and that the "individualized assessment . . . must provide a rationale tailored to the particular case at hand and [be] adequate to permit meaningful to rebut appellate the review"). this Moreover, court we find no evidence presumption accords Sipe's within-Guidelines sentence. F.3d 178, 193 (4th Cir. 2007). See United States v. Allen, 491 3 In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court's judgment. This court requires that counsel inform Sipe, in writing, of the right to petition review. the Supreme Court of the United States for further If Sipe 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 We dispense with oral argument because the are and adequately argument presented not in aid the the was served on Sipe. facts and legal before contentions the court materials would decisional process. AFFIRMED 4

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