US v. Antonio Scott

Filing 920090422

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4851

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTONIO LAMAR SCOTT, Defendant - Appellant.

No. 08-5008

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TROY ADAM DAVENPORT, JR., Defendant - Appellant.

Appeals from the United States District Court for the District of South Carolina, at Greenville. Henry F. Floyd, District Judge. (6:08-cr-00215-HFF-2; 6:08-cr-00215-HFF-1).

Submitted:

April 16, 2009

Decided:

April 22, 2009

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David B. Betts, Columbia, South Carolina; James B. Loggins, Assistant Federal Public Defender, Greenville, South Carolina, for Appellants. Elizabeth Jean Howard, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: Co-defendants Antonio Lamar Scott and Troy Adam

Davenport, Jr., pled guilty to armed bank robbery, 18 U.S.C. § 2113(a), (d) (2006), and possession of a firearm in

furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A) (2006). They were both sentenced to 117 months' imprisonment On appeal, their

and a five-year term of supervised release.

respective attorneys have filed briefs pursuant to Anders v. California, 386 U.S. 738 (1967), stating that, in their view, there are no meritorious issues for appeal. However, Scott's

counsel questions the adequacy of Scott's Fed. R. Crim. P. 11 hearing, and Davenport's attorney challenges the reasonableness of Davenport's sentence. Scott and Davenport were advised of

their right to file pro se supplemental briefs but have not done so. The Government has declined to file reply briefs in both Finding no error, we affirm. Scott's counsel raises as a potential issue the

cases.

adequacy of the plea colloquy in light of the district court's failure to inform Scott that he had a right to persist in his plea of not guilty under Fed. R. Crim. P. 11(b)(1)(B). Because

Scott did not move in the district court to withdraw his guilty plea on the ground raised on appeal, any error in the Rule 11 hearing is reviewed for plain error. 277 F.3d 517, 525 (4th Cir. 3 2002) United States v. Martinez, (discussing standard of

review).

Our careful review of the record on appeal convinces

us that the district court's omission did not affect Scott's substantial rights. 400, 402 (4th Cir. See id.; United States v. Goins, 51 F.3d 1995) (discussing factors courts should

consider in determining whether substantial rights affected in decision to plead guilty). Davenport's Davenport's sentence. counsel We questions review a the reasonableness sentence of for

criminal

reasonableness, using the abuse of discretion standard. United States, 128 S. Ct. 586, 594-97 (2007). Davenport's reasonable. properly sentence is both procedurally

Gall v.

We conclude that and substantively

In this regard, we note that the district court Davenport's Guidelines range, treated the

calculated

Guidelines as advisory, and considered the applicable 18 U.S.C. § 3553(a) (2006) factors. See United States v. Pauley, 511 F.3d

468, 473 (4th Cir. 2007); see also Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding application of rebuttable presumption of correctness of within-guideline sentence). We have examined the entire record in these cases in accordance meritorious judgments. clients, Court of in with the requirements appeal. requires of Anders, and we we find no

issues This

for

Accordingly, that to counsel

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further

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respective client requests that a petition be filed, but counsel believes that such a petition would be frivolous, counsel may move in this court for leave to withdraw from representation. Counsel's motion must state that a copy of the motion was served on the client. We dispense 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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