US v. Jermoll Burt

Filing 920100421

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5119

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JERMOLL BURT, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:06-cr-00213-1)

Submitted:

March 29, 2010

Decided:

April 21, 2010

Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Matthew A. Victor, VICTOR VICTOR & HELGOE, LLP, Charleston, West Virginia, for Appellant. Erik S. Goes, Assistant United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Jermoll Burt pled guilty, pursuant to a written plea agreement, to conspiracy to distribute fifty kilograms or more of marijuana, in violation of 21 U.S.C. § 846 (2006). district court calculated Burt's advisory The

Guidelines

imprisonment range under the U.S. Sentencing Guidelines Manual (2007) at seventy-eight to ninety-seven months' imprisonment,

but granted a downward variance and imposed a seventy-two month sentence. On appeal, Burt's attorney filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), noting no

meritorious issues for appeal.

Burt was advised of his right to

file a pro se supplemental brief and, despite several extensions of time, has not done so. The Government declined to file a

brief and does not seek to enforce the plea agreement's appeal waiver. * Finding no reversible error, we affirm. Burt does not challenge the district court's denial of his pre-sentencing our motion is to for withdraw abuse 421, of his guilty plea. United We

Therefore, States v.

review 215

discretion. Cir.

Ubakanma,

F.3d

424

(4th

2000).

Because the Government fails to assert the appellate waiver contained in Burt's plea agreement, we may conduct an Anders review. See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).

*

2

closely scrutinize the Fed. R. Crim. P. 11 colloquy and attach a strong presumption that the plea is final and binding, after determining States v. that the Rule 974 11 hearing 1389, was 1394 that adequate. (4th the Cir. United 1992). court

Lambey, the

F.2d

Critically,

transcript

reveals

district

ensured the plea was supported by an independent factual basis, and that Burt entered the plea knowingly and voluntarily with an understanding of the consequences. See United States v. Wilson, Finding that the Rule 11 failed to overcome the

81 F.3d 1300, 1307 (4th Cir. 1996). hearing was adequate and that Burt

presumption that his plea is final and binding, we conclude the district court did not abuse its discretion in denying the

motion to withdraw his guilty plea.

See United States v. Moore,

931 F.2d 245, 248 (4th Cir. 1991) (listing factors to consider when addressing motion to withdraw plea). Turning to Burt's sentence, we review it for

reasonableness under an abuse of discretion standard. United States, 552 U.S. the 38, 51 (2007). The

Gall v. court heard and 18

district and

correctly argument allocution

calculated from from the

advisory on

Guidelines

range

parties The

the

appropriate considered the

sentence relevant

Burt.

court

U.S.C. § 3553(a) (2006) factors, addressing on the record the nature and circumstances Burt's of the offense, for a Burt's history and

characteristics,

request 3

downward

variance

considering

he

had

served

a

169-day

sentence

for

a

state

conviction arising out of an offense that occurred during the federal conspiracy, and the need to impose a sentence that was sufficient, but not greater than necessary to meet the

sentencing goals.

We find no error by the district court in See Gall, 552 U.S. at 51 Furthermore, the district

calculating Burt's Guidelines range. (providing standard of review).

court's statements at the sentencing hearing clearly reflect a valid and individualized assessment under § 3553(a) and justify the sentence imposed. See United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009); United States v. Pauley, 511 F.3d 468, 473-75 (4th Cir. 2007). In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Burt's conviction and sentence. This court

requires that counsel inform Burt, in writing, of the right to petition review. the Supreme Court of the United States for further

If Burt 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

was served on Burt. We dispense with oral argument because the facts and legal contentions are adequately 4 presented in the materials

before

the

court

and

argument

would

not

aid

the

decisional

process. AFFIRMED

5