US v. Antonio Scott

Filing 920090422

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4851 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTONIO LAMAR SCOTT, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Co-defendants Antonio Lamar Scott and Troy Adam Davenport, Jr., pled guilty to armed bank robbery, 18 U.S.C. 2113(a), (d)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 affirm inform the both their court writing, United of their States right for 4 petition Supreme If the the further review. 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 5

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