US v. Jarvaris Andrews

Filing 920100616

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4788 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JARVARIS ANTWAN ANDREWS, Defendant Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Senior District Judge. (1:08-cr-00144-NCT-1) Submitted: May 20, 2010 Decided: June 16, 2010 Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Robert L. McClellan, IVEY, MCCLELLAN, GATTON & TALCOTT, LLP, Greensboro, North Carolina, for Appellant. Terry Michael Meinecke, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Pursuant to a written plea agreement, Jarvaris Antwan Andrews pled guilty to distribution of cocaine base (crack) and was sentenced to 131 months in prison. He now appeals. His attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), arguing that the district court should have imposed a lower sentence because of the federal sentencing guidelines' disparate treatment of offenses involving crack and those involving powder cocaine. in his pro se brief. Our discloses review We affirm. of the transcript with Fed. of the R. plea Crim. colloquy P. 11. Andrews raises the same issue full compliance Furthermore, the record reveals that Andrews entered his plea voluntarily and knowingly and that there was a factual basis for the plea. Finally, we have identified no meritorious appellate issues related to the conviction. Turning to Andrews' sentence, his advisory Guidelines range was 262-327 months. States' Motion for The district court granted the United of Sentence based on Andrews' Reduction substantial assistance and sentenced Andrews to 131 months in prison. Andrews contends that the district court should have imposed an even lower sentence because of the crack/powder disparity. He effectively is challenging, in light of Spears v. United States, 129 S. Ct. 840 (2009), and Kimbrough v. United 2 States, 552 U.S. 85 (2007), the district court's application of the mandatory crack-to-powder cocaine ratio that is incorporated in the sentencing guidelines. Because he raises this issue for See the first time on appeal, our review is for plain error. Fed. R. Crim. P. 52(b); United State v. Jeffers, 570 F.3d 557, 569 (4th Cir.), plain cert. error, denied, Andrews 130 S. Ct. show 645 (2009). an To error establish "must that occurred, that the error was plain, and that it affected his substantial rights." See id. Assuming without deciding that plain error occurred, Andrews cannot establish that the error affected his substantial rights. defendant We previously "concluded that the error of sentencing a under a mandatory guidelines regime is neither presumptively prejudicial nor structural" and that, to establish that a plain error affected his substantial rights, a defendant must demonstrate "actual prejudice" flowing from the error. To United States v. White, 405 F.3d 208, 223 (4th Cir. 2005). make this showing, the defendant must demonstrate that the error "affected the outcome of the district court proceedings." Id. In this regard, the crucial question is "whether the record as a whole provides [a] nonspeculative basis for concluding that [the sentencing error] affected the district court's selection of the sentence imposed." Id. 3 Here, the district court made no comment at sentencing concerning the crack/powder disparity. It would be only speculation to conclude that the disparity in any way impacted the court's selection of the 131-month sentence. there was no plain error. and We further find Accordingly, that Andrews' See sentence was procedurally substantively reasonable. Gall v. United States, 552 U.S. 38, 51 (2007). the district court properly the calculated 18 U.S.C. In this regard, advisory (2006) variant Andrews' 3553(a) the Guidelines sentencing sentence. range, factors, See id. applied and adequately explained We accordingly affirm. In accordance with Anders, we have thoroughly reviewed the record for any meritorious issues and have found none. We therefore affirm. This court requires that counsel inform his client, in writing, of his right to petition review. counsel counsel the Supreme Court of the United States for further If the client requests that a petition be filed, but believes may move that this such a petition for would to be frivolous, from court leave withdraw representation. Counsel's motion must state that a copy of the We dispense with oral argument motion was served on the client. because the facts and legal contentions are adequately presented 4 in the materials before the court and argument would not aid the decisional process. AFFIRMED 5

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