US v. Janelle Pearson

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00128-MR-DLH-11 Copies to all parties and the district court/agency. [998458727] [09-4727]

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US v. Janelle Pearson Doc. 0 Case: 09-4727 Document: 55 Date Filed: 11/03/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4727 UNITED STATES OF AMERICA, Plaintiff - Appellee, and ROY NELSON PATTON, PATTON LEONARD, SR.; JOHN WILSON PATTON; BARBARA ANN Claimants, v. JANELLE DYANNE PEARSON, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:08-cr-00128-MR-DLH-11) Submitted: October 7, 2010 Decided: November 3, 2010 Before MOTZ, SHEDD, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Chiege O. Kalu Okwara, Charlotte, North Carolina, for Appellant. Thomas Richard Ascik, Amy Elizabeth Ray, Assistant United States Attorneys, Jill Westmoreland Rose, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. Dockets.Justia.com Case: 09-4727 Document: 55 Date Filed: 11/03/2010 Page: 2 Unpublished opinions are not binding precedent in this circuit. 2 Case: 09-4727 Document: 55 Date Filed: 11/03/2010 Page: 3 PER CURIAM: Janelle sentence imposed Dyanne Pearson her timely guilty appeals plea to the 108-month to following conspiracy possess with intent to distribute cocaine base, in violation of 21 U.S.C. 841(a)(1), 846 (2006). On appeal, counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal but questioning whether: (1) the district court had jurisdiction to accept Pearson's guilty plea and impose sentence; (2) Pearson's guilty plea was knowing and voluntary; and (3) the district court erred in failing to sentence Pearson to less than 108 months' imprisonment. though she was advised Pearson has not filed a pro se brief, of her right to do so. Finding no reversible error, we affirm. Counsel's first two arguments essentially go to the adequacy of the Federal Rule of Criminal Procedure 11 ("Rule 11") hearing, questioning whether there was an adequate factual basis for accepting Pearson's guilty plea and whether Pearson's plea was knowing guilty and plea, voluntary. a magistrate Prior judge to or accepting the a defendant's district court must address the defendant in open court and ensure she understands, among other things, the nature of the charge against her, the possible punishments she faces, and the rights she relinquishes by pleading guilty. 3 Fed. R. Crim. P. 11(b)(1). Case: 09-4727 Document: 55 Date Filed: 11/03/2010 Page: 4 The court also must ensure that a sufficient factual basis exists to support the plea, Fed. R. Crim. P. 11(b)(3), and that the plea is knowing and voluntary, Fed. R. Crim. P. 11(b)(2). Because Pearson did not move to withdraw her guilty plea in the district court or raise any objections to the Rule 11 colloquy, we review for plain error. United States v. General, 278 F.3d 389, 393 (4th Cir. 2002); United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002). Upon review, we conclude that the district court did not err in accepting the offense conduct to presented the in the plea. Cir.) presentence See United report States as v. of sufficient Kellam, enter F.3d guilty 139 (4th 568 125, (stating elements offense), cert. denied, 130 S. Ct. 657 (2009). Moreover, our review of the plea hearing transcript reveals no deficiencies in the colloquy conducted by the magistrate judge. district court did not err in finding Therefore, the guilty plea Pearson's knowing and voluntary. Finally, counsel argues that the district court erred in sentencing Pearson to 108 months' imprisonment, stating that Pearson should have received a lower sentence based on her substantial assistance to the Government. Government's Government's substantial assistance motion After granting the and accepting of the the recommendation regarding the extent departure, the district court departed downward and sentenced 4 Case: 09-4727 Document: 55 Date Filed: 11/03/2010 Page: 5 Pearson below the applicable statutory mandatory minimum The sentence based upon the circumstances of Pearson's case. district court was under no obligation to further depart based on the Government's motion. To the extent Pearson appeals the sufficiency and extent of the departure simply because of her dissatisfaction with it, we do not have jurisdiction to consider that claim. United States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008); United States v. Hill, 70 F.3d 321, 324 (4th Cir. 1995). In accordance with Anders, we have reviewed the 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 Pearson, in writing, of her right to petition the Supreme Court of the United States for further review. counsel counsel If Pearson requests such this a that a petition would to be be filed, but believes may move that in petition for frivolous, from court leave withdraw representation. Counsel's motion must state that a copy thereof We dispense with oral argument because was served on Pearson. the facts and legal conclusions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5

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