US v. Graham Sipe

Filing 920100419

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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