US v. Ryan Brown

Filing 920090903

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4122 UNITED STATES OF AMERICA, Plaintiff Appellee, v. RYAN CRAIG BROWN, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:08-cr-00184-RBH-1) Submitted: August 26, 2009 Decided: September 3, 2009 Before WILKINSON and Senior Circuit Judge. MICHAEL, Circuit Judges, and HAMILTON, Affirmed by unpublished per curiam opinion. William F. Nettles, IV, Assistant Federal Public Defender, Florence, South Carolina, for Appellant. Rose Mary Sheppard Parham, Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ryan Craig Brown pled guilty pursuant to a Fed. R. Crim. P. 11(c)(1)(C) plea agreement to armed bank robbery, in violation of 18 U.S.C. 2113(a), (d) (2006) ("Count One"); use of a firearm during a crime of violence, ("Count in violation and of 18 U.S.C. 924(c)(1)(A) (2006) Two"); robbery affecting commerce, in violation of 18 U.S.C. 1951(a) (2006) ("Count Three"). dismiss the In exchange for the Government's agreement to counts for which Brown was indicted, additional Brown agreed to a 300-month sentence in his plea agreement and the district court imposed this sentence on Brown. Brown's counsel has filed a brief, pursuant to Anders v. California, 386 U.S. 738 (1967), explaining that he found no meritorious grounds for appeal, but nonetheless suggesting that the court review: (i) whether the district court complied with Fed. R. Crim. P. 11 when it accepted and Brown's agreed guilty upon plea; and (ii) year whether Brown's negotiated twenty-five sentence is reasonable. in which he raises Brown filed a pro se supplemental brief assignments of error, and the additional Government declined to file a responsive brief. 1 error, we affirm. Finding no Brown waived his right to appeal his conviction and sentence in his plea agreement. Because the Government failed to assert the waiver as a bar to the appeal, however, we may (Continued) 2 1 In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for review. The record reveals that the district court fully complied with the Fed. R. Crim. P. 11 requirements during the plea colloquy, ensuring that Brown's plea was knowing and voluntary, that he understood the rights he was giving up by pleading guilty and the sentence he faced, and that he committed the offenses to which the he was pleading that he guilty. fully Brown also the attested during hearing understood ramifications of his guilty plea, and that no one made promises to him outside those made by the Government in his plea agreement. hearing, supported and Because no error was committed during the Rule 11 since a Brown's plea was knowing, we voluntary, affirm and by sufficient factual basis, Brown's convictions. We also affirm Brown's sentence. After United States v. Booker, 543 U.S. 220 (2005), a sentence is reviewed for reasonableness, using an abuse of discretion standard of review. Gall v. United States, 128 S. Ct. 586, 597 (2007). The first step in this review requires the court to ensure that the district court committed no significant procedural error. undertake an Anders review. United 492 F.3d 263, 271 (4th Cir. 2007). States v. Poindexter, 3 United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). Assuming the district court committed no significant procedural error, this court must next consider the substantive reasonableness of the sentence imposed, taking into account the totality of the circumstances. Id. at 161-62. While the court presumes that a sentence within a properly calculated Guidelines range is reasonable, see United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007), it may not presume that a sentence outside the Guidelines range is unreasonable. Ali, 528 F.3d from 210, the 261 (4th Cir. is See United States v. Abu ("[A] sentence the that same 2008) deviates Guidelines reviewed under deferential abuse-of-discretion standard as a sentence imposed within the applicable guidelines range."), cert. denied, 129 S. Ct. 1312 (2009). Our review of the plea agreement, Brown's presentence investigation confirms that report, Brown's and the sentencing was both hearing transcript and sentence procedurally substantively reasonable. Even though the sentence was above Brown's Guidelines range, it was reasonable in light of Brown's Rule 11 plea agreement in which Brown agreed to the upward departure. Moreover, because the sentence to which he agreed was substantially less than the sentence he faced had he been convicted of all of the crimes for which he was indicted, Brown 4 received the benefit of his bargain when the Government dismissed the remaining counts. Having reviewed the record in this case and finding no meritorious issues for review, 2 we affirm the district court's judgment. This court requires that counsel inform Brown in writing of his right to petition the Supreme Court of the United States for further review. filed, but counsel then If Brown requests that a petition be that motion such this a petition court for would leave be to believes may frivolous, counsel withdraw from representation. Counsel's motion must state that We dispense with oral a copy thereof was served on Brown. 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 We have reviewed the assignments of error raised in Brown's pro se supplemental brief and find them to be meritless. 2 5

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