US v. Allen Brown

Filing 920090629

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5096

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALLEN JOSHUA BROWN, a/k/a Antonio Frank Brown, a/k/a Milk, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Sol Blatt, Jr., Senior District Judge. (2:07-cr-01117-SB-1)

Submitted:

May 29, 2009

Decided:

June 29, 2009

Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Mary Gordon Baker, Assistant Federal Public Charleston, South Carolina, for Appellant. Sean Assistant United States Attorney, Charleston, South for Appellee.

Defender, Kittrell, Carolina,

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Allen indictment Joshua him Brown with: pled (1) guilty possession to a two-count intent to

charging

with

distribute cocaine base, cocaine and marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)-(D) (2006) (Count One); and (2) carrying a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (2006) (Count Two). He was sentenced to 85 months on Count One and a consecutive term of 60 months on Count Two, for a total sentence of 145 months. Brown's counsel has filed a brief pursuant to Anders v. 386 no U.S. 738 (1967), issues (1) stating for that, in In her her view, brief,

California, there are

meritorious questions

appeal. Brown's

however,

counsel

whether

plea

complied

with Fed. R. Crim. P. 11, and (2) whether the district court erred in sentencing Brown. claims. Brown has filed pro se supplemental

Finding no error, we affirm. Because Brown did not move in the district court to

withdraw his guilty plea, we review the propriety of the Fed. R. Crim. P. 11 hearing for plain error. 277 F.3d 517, 525 (4th Cir. 2002). plea, the district court must United States v. Martinez, Before accepting a guilty ensure that the defendant

understands the nature of the charges against him, the mandatory minimum and maximum sentences, and various other rights, so it is clear the defendant is knowingly and voluntarily entering his 2

plea.

The court also must determine whether there is a factual

basis for the plea. Fed. R. Crim. P. 11(b)(3); United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). plea hearing transcript reveals that the Our review of the district court

conducted a thorough Rule 11 colloquy, ensuring that Brown's plea was knowing and voluntary and that there was an independent factual basis for the plea. We review a criminal sentence for reasonableness,

using the abuse of discretion standard.

Gall v. United States, We conclude substantively Brown's and

552 U.S. 38, ___, 128 S. Ct. 586, 594-97 (2007). that Brown's sentence The range, is both procedurally properly Guidelines and

reasonable. Guidelines

district treated

court the

calculated as

advisory,

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, 551 U.S. 338, ___, 127 S. Ct. 2456, 2462-69 (2007) (upholding application of rebuttable The

presumption of correctness of within-guideline sentence).

court's sentence was based on its "individualized assessment" of the facts of the case. 328 (4th Cir. 2009). Having considered Brown's pro se claims, we find they entitle him to no relief. In accordance with Anders, we have United States v. Carter, 564 F.3d 325,

also reviewed the record and have found no meritorious issues 3

for

appeal.

We

therefore

affirm

Brown's

conviction

and

sentence. This writing, of court requires to that counsel the inform Brown, of in the

his

right

petition

Supreme

Court

United States for further review.

If Brown 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 We dispense with contentions the court are and

state that a copy thereof was served on Brown. oral argument because in the the facts and legal before

adequately

presented

materials

argument would not aid the decisional process. AFFIRMED

4