US v. Michael Wilson

Filing 920090707

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5213

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL DEANDRE WILSON, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Anderson. Henry M. Herlong, Jr., Senior District Judge. (8:08-cr-00286-HMH-1)

Submitted:

June 25, 2009

Decided:

July 7, 2009

Before TRAXLER and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Lora E. Collins, Assistant Federal Public Defender, Greenville, South Carolina, for Appellant. Winston David Holliday, Jr., Assistant United States Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Michael Deandre Wilson pleaded guilty to mail fraud, in violation of 18 U.S.C.A. § 1341 (West Supp. 2009), and use of the identification of another person in relation to mail fraud, in violation of 18 U.S.C. § 1028A (2006). sentenced Wilson to seventy months of The district court imprisonment. His

attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), raising three issues but stating that there are no meritorious issues for appeal. Wilson was informed of his We

right to file a pro se supplemental brief but did not do so. affirm. In the Anders brief, counsel questions whether

the

district court erred in accepting Wilson's guilty plea.

Prior

to accepting a guilty plea, a trial court, through colloquy with the defendant, must inform the defendant of, and determine that he understands, the nature of the charges to which the plea is offered, any mandatory minimum penalty, the maximum possible

penalty he faces, and the various rights he is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b). The court also must Id.;

determine whether there is a factual basis for the plea.

United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). The purpose of the Rule 11 colloquy is to ensure that the plea of guilt is entered into knowingly and voluntarily. States v. Vonn, 535 U.S. 55, 58 (2002). 2 See United

Because Wilson did not move in the district court to withdraw his guilty plea, any error in the Rule 11 hearing is reviewed for plain error. 517, 525 (4th Cir. 2002). United States v. Martinez, 277 F.3d "To establish plain error, [Wilson]

must show that an error occurred, that the error was plain, and that the error affected his substantial rights." United Even if

States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007).

Wilson satisfies these requirements, "correction of the error remains . . . within unless our the discretion, error which we should not the exercise fairness, Id.

seriously

affect[s]

integrity or public reputation of judicial proceedings."

Our review of the transcript reveals substantial compliance with the requirements of Rule 11, and we conclude that Wilson pleaded guilty knowingly and voluntarily. The remaining two issues raised by Wilson's counsel assert district guidelines sentencing court for errors. in Counsel applying of an questions whether under the the

erred

adjustment or otherwise

obstruction

justice

committed

plain error in sentencing Wilson. reasonableness, applying an abuse

We review a sentence for of discretion standard.

Gall v. United States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009). In so doing, we first examine the sentence for

"significant procedural error," including "failing to calculate 3

(or improperly calculating) the [g]uidelines range, treating the [g]uidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence . . . ." Gall, 128 S. Ct. at 597. This court then "`consider[s] the United

substantive reasonableness of the sentence imposed.'"

States v. Evans, 526 F.3d 155, 161 (4th Cir.) (quoting Gall, 128 S. Ct. at 597), cert denied, 129 S. Ct. 476 (2008) (quoting Gall, 128 S. Ct. at 597). "Substantive reasonableness review

entails taking into account the `totality of the circumstances, including range.'" the extent of any variance from the [g]uidelines

United States v. Pauley, 511 F.3d 468, 473 (4th Cir. If the sentence is a presumption of

2007) (quoting Gall, 128 S. Ct. at 597). within the guidelines range, we apply

reasonableness. S. Ct. 2456,

Rita v. United States, 551 U.S. 338, ___, 127 2462-69 (2007) (upholding presumption of

reasonableness for within-guidelines sentence). We district have reviewed the record in and conclude an that the for

court

neither

erred

applying

adjustment

obstruction of justice nor committed reversible procedural error in sentencing Wilson. Furthermore, we conclude that Wilson's

within-guidelines sentence is substantively reasonable. We have examined the entire record in accordance with the requirements of Anders and have found no meritorious issues 4

for appeal. court. writing, This of

We therefore affirm the judgment of the district court requires to that counsel the inform Wilson, of in the

the

right

petition

Supreme

Court

United States for further review.

If Wilson 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

state that a copy thereof was served on Wilson.

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid in the decisional process. AFFIRMED

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