US v. Starks Fincher, Jr.

Filing 920100420

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4896 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. STARKS FINCHER, JR., Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. G. Ross Anderson, Jr., Senior District Judge. (7:08-cr-01219-GRA) Submitted: April 12, 2010 Decided: April 20, 2010 Before KING, GREGORY, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. David W. Plowden, Assistant Federal Public Defender, Greenville, South Carolina, for Appellant. Elizabeth Jean Howard, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Pursuant to a written plea agreement, Starks Fincher, Jr., pled guilty to possession with intent to distribute five grams or more of cocaine base, possession of a firearm by a convicted felon, and possession of a firearm during a drug trafficking crime. He now appeals. He was sentenced to 262 months in prison. His attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), questioning whether Fincher's sentence is reasonable but stating that there are no meritorious issues for appeal. Fincher was notified of his right to file a pro se supplemental brief but has not filed such a brief. We affirm. Our review of the transcript of the plea colloquy Further, discloses full compliance with Fed. R. Crim. P. 11. the record reveals that Fincher entered his plea voluntarily and knowingly and that there was a factual basis for the plea. Finally, we have identified no viable appellate issues related to the convictions. Turning reasonableness, to Fincher's an sentence, our review is for applying abuse-of-discretion standard. In imposing Fincher's Gall v. United States, 552 U.S. 38, 51 (2007). sentence, the district court properly calculated advisory Guidelines range and considered the 18 U.S.C. 3553(a) (2006) sentencing factors, as Gall requires. 2 See id. Fincher's 262-month sentence falls within his Guidelines range of 262-327 months; we afford a presumption of reasonableness to this within-Guidelines sentence. 216, 218 (4th Cir. 2008). See United States v. Go, 517 F.3d "Regardless of whether the district court imposes an above, below, or within-Guidelines sentence, it must place on the record an facts `individualized of the case assessment' it." based United on States the v. particular before Carter, 564 F.3d 325, 330 (4th Cir. 2009). court made no such individualized assessment. Here, the district However, Fincher did not object to this omission, and our review therefore is for plain error. See United States v. Jeffers, 570 F.3d 557, 569-70 At sentencing, (4th Cir.), cert. denied, 130 S. Ct. 645 (2009). defense counsel requested a sentence at the low end of Fincher's advisory Guidelines range, and Fincher received the lowest possible sentence within that range. We conclude that there was no plain error because the omission did not affect Fincher's substantial rights. 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. the Supreme Court of the United States for further If the client requests that a petition be filed, but 3 counsel counsel 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 in the materials before the court and argument would not aid the decisional process. AFFIRMED 4

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