US v. Puong Phan

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:07-cr-00360-NCT-1,1:07-cr-00373-NCT-1 Copies to all parties and the district court/agency. [998601067].. [09-4717]

Appeal: 09-4717

Document: 45

Date Filed: 05/31/2011

Page: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4717

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHOUNG PHAN,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge.
(1:07-cr-00360-NCT-1; 1:07-cr00373-NCT-1)

Submitted:

January 18, 2011

Decided:

May 31, 2011

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant.
Graham Tod Green, Assistant United
States Attorney, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 09-4717

Document: 45

Date Filed: 05/31/2011

Page: 2 of 4

PER CURIAM:
Phoung Phan appeals his convictions and the 168-month
sentence
pleas

imposed

to

by

the

district

court

to

possess

with

conspiracy

following
intent

to

his

guilty

distribute

ecstasy, and conspiracy to distribute 100 or more kilograms of
marijuana, all in violation of 21 U.S.C. §§ 841, 846 (2006).
Phan’s

counsel

has

filed

a

brief

pursuant

to

Anders

v.

California, 386 U.S. 738 (1967) asserting that, in her opinion,
there are no meritorious issues for appeal.

Phan was notified

of his right to file a pro se supplemental brief, but has not
filed a brief.

The Government declined to file a brief.

We

affirm.
Because Phan did not move in the district court to
withdraw his guilty plea, we review the Fed. R. Crim. P. 11
hearing for plain error.
517, 525 (4th Cir. 2002).

United States v. Martinez, 277 F.3d
“To establish plain error, [Phan]

must show that an error occurred, that the error was plain, and
that the error affected his substantial rights.”

United States

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

Our review of

the

record

leads

us

to

conclude

that

the

district

court

substantially complied with Rule 11, and that Phan’s guilty plea
was knowing and voluntary.
We

review

Phan’s

sentence

for

abuse

Gall v. United States, 552 U.S. 38, 51 (2007).
2

of

discretion.

The first step

Appeal: 09-4717

Document: 45

Date Filed: 05/31/2011

Page: 3 of 4

in this review requires us to ensure that the district court
committed no significant procedural error.
Evans,

526

F.3d

155,

161

(4th

Cir.

United States v.

2008).

Significant

procedural errors include “‘failing to calculate (or improperly
calculating) the Guidelines range, . . . failing to consider the
[18 U.S.C.] § 3553(a) factors, . . . or failing to adequately
explain the chosen sentence--including an explanation for any
deviation from the Guidelines range.’”

United States v. Carter,

564 F.3d 325, 328 (4th Cir. 2009) (quoting Gall, 552 U.S. at
51).

We then consider the substantive reasonableness of the

sentence, taking into account the totality of the circumstances.
Gall, 552 U.S. at 51.
presume

a

sentence

range is reasonable.
(4th Cir. 2007).

When reviewing a sentence on appeal, we
within

the

properly-calculated

Guideline

United States v. Allen, 491 F.3d 178, 193

Our review of the record leads us to conclude

that the district court properly determined the Guidelines range
and committed no procedural error.
bottom

of

the

Guidelines

range

Phan’s sentence was at the
and

is

thus

substantively

reasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal.

We

therefore

affirm

the

district

court’s

judgment.

This court requires that counsel inform Phan in writing of his
right to petition the Supreme Court of the United States for
3

Appeal: 09-4717

Document: 45

further review.

Date Filed: 05/31/2011

Page: 4 of 4

If Phan requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then
counsel

may

move

representation.

in

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Phan.
We dispense with oral argument because the facts and
legal
before

contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

AFFIRMED

4