US v. Michael Barrett, Jr.

Filing 920100212

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4600

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. MICHAEL ANTHONY BARRETT, JR., Defendant ­ Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., Chief District Judge. (1:08-cr-00398-JAB-1)

Submitted:

January 25, 2010

Decided:

February 12, 2010

Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, William C. Ingram, First Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Graham Tod Green, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Michael Anthony Barrett, Jr., pled guilty to one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2006). He was found to be an

armed career criminal under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and U.S. Sentencing Guidelines Manual § 4B1.4 (2008), and was sentenced to 220 months' imprisonment. appeals. California, Counsel 386 has filed a brief pursuant that to He now v. no

Anders are

U.S.

738

(1967),

stating

there

meritorious issues for appeal, but questioning whether Barrett's sentence is reasonable. Barrett has filed a pro se supplemental

brief in which he asserts that his guilty plea was not knowingly and voluntarily made, that the district court committed

procedural error in imposing his sentence, and that his counsel rendered ineffective assistance. We affirm.

Because Barrett did not move in the district court to withdraw his guilty plea, his challenge to the adequacy of the Fed. R. Crim. P. 11 hearing is reviewed for plain error. See

United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Our review of the transcript of the plea hearing leads us to conclude that the district court substantially complied with the mandates of Rule 11 in accepting Barrett's guilty plea and that the court's omissions did not affect Barrett's substantial

rights.

Critically, the transcript reveals that the district 2

court ensured the plea was supported by an independent factual basis and that with Barrett an v. entered the of the plea knowingly and See 119-20

voluntarily United

understanding DeFusco, 949

consequences. 114, 116,

States

F.2d

(4th Cir. 1991). Turning reasonableness, to Barrett's an sentence, we review it for

applying

abuse-of-discretion

standard.

Gall v. United States, 552 U.S. 38, 41 (2007).

In conducting

this review, we must first examine the sentence for "significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, [(2006)] failing factors, to consider a the [18 U.S.C.] based on § 3553(a) clearly

selecting

sentence

erroneous facts, or failing to adequately explain the chosen sentence." Id. at 51. When "rendering a sentence, the district

court must make an individualized assessment based on the facts presented," applying the "relevant § 3553(a) factors to the

specific circumstances of the case before it."

United States v.

Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks "state and in emphasis open omitted). the The district reasons court must also its

court

particular

supporting

chosen sentence" and "set forth enough to satisfy" this court that it has basis "considered for the parties' [its] 3 own arguments legal and has a

reasoned

exercising

decisionmaking

authority."

Id.

(internal

quotation

marks

omitted).

The

district court, however, is not required to "robotically tick through § 3553(a)'s every subsection." United States v.

Johnson, 445 F.3d 339, 345 (4th Cir. 2006). If the sentence is free of procedural error, we then consider the substantive reasonableness of the sentence, taking into account the totality of the circumstances. at 51. range, Gall, 552 U.S.

If the sentence is within the appropriate Guidelines this court applies a presumption on appeal that the

sentence is reasonable. 218 (4th Cir. 2008).

See United States v. Go, 517 F.3d 216,

We conclude that the district court did not commit procedural or substantive error in sentencing Barrett. The

district court properly calculated and treated as advisory the Guidelines' imprisonment range of 188 to 235 months. The court

heard argument from the parties on the appropriate sentence and gave Barrett an opportunity to allocute. The court considered

the relevant § 3553(a) factors, addressing on the record the nature and circumstances of the offense, Barrett's history and characteristics, and the need for the sentence to protect the public. Further, neither counsel nor Barrett offers any grounds

to rebut the presumption on appeal that the within-Guidelines sentence of 220 months' imprisonment is reasonable.

4

Finally, ineffective

Barrett's is more

claim

that

counsel

rendered in a

assistance

appropriately pursuant

considered to 28

post-conviction

proceeding

brought

U.S.C.A.

§ 2255 (West Supp. 2009), unless counsel's alleged deficiencies conclusively appear on the record. See United States v.

Richardson, 195 F.3d 192, 198 (4th Cir. 1999). no conclusive evidence on the record that

Because we find counsel rendered

ineffective assistance, we decline to consider this claim on direct appeal. As required by Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. therefore affirm the district court's judgment. This We

court

requires that counsel inform Barrett, in writing, of the right to petition the Supreme Court of the United States for further review. If Barrett 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 Barrett. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED 5