US v. Wardell McClam, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00230-TDS-1 Copies to all parties and the district court/agency. [998599859]. [09-5022]

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Date Filed: 05/27/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-5022

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WARDELL JERMAINE MCCLAM, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00230-TDS-1)

Submitted:

November 4, 2010

Decided:

May 27, 2011

Before WILKINSON, KING, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

J. Clark Fischer, RANDOLPH AND FISCHER, Winston-Salem, North
Carolina, for Appellant.
Anna Mills Wagoner, Paul Alexander
Weinman, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Wardell

Jermaine

McClam

Jr.,

appeals

his

conviction

and 138 month sentence for one count of conspiracy to distribute
cocaine

base

in

violation

of

21

U.S.C.

§§ 846;

841(a)(1),

(b)(1)(A) (2006), and one count of possession of a firearm by a
felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006).
Counsel

has

filed

a

brief

in

accordance

with

Anders

v.

California, 386 U.S. 738 (1967), certifying that there are no
meritorious issues for appeal but questioning whether McClam’s
indictment

was

valid,

whether

voluntary,

and

supported

by

his

an

guilty

adequate

whether his sentence was reasonable.

plea

was

factual

knowing,

basis,

and

McClam was notified of his

right to file a pro se supplemental brief and has not done so.
Counsel

first

questions

whether

the

indictment

sufficient to allege the offenses charged against McClam.
counseled

guilty

defects

not

guilt,

unless

plea

logically
the

waives

all

antecedent

inconsistent

appellant

can

with

show

the

that

was
A

nonjurisdictional
establishment
his

plea

was

of
not

voluntary and intelligent because the advice of counsel “was not
within the range of competence demanded of attorneys in criminal
cases.”

Tollett

v.

(internal

quotations

Henderson,
and

411

citation

indictment are not jurisdictional.

2

U.S.

258,

omitted).

266-67
Defects

(1973)
in

the

United States v. Cotton, 535

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U.S. 625, 631 (2002).

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Accordingly, McClam’s counseled guilty

plea waives his claim that the indictment was defective.
Next,

counsel

questions

whether

the

district

court

ensured that McClam’s guilty plea was knowing, voluntary, and
supported by an adequate factual basis.

Prior to accepting a

guilty plea, a trial court, through colloquy with the defendant,
must inform the defendant of, and determine that the defendant
understands the nature of, the charges to which the plea is
offered,

any

mandatory

minimum

penalty,

the

maximum

possible

penalty he faces, and the various rights he is relinquishing by
pleading guilty.

Fed. R. Crim. P. 11(b).

“In reviewing the

adequacy of compliance with Rule 11, this court should accord
deference
conduct

to

the

the

trial

mandated

court’s

colloquy

decision
with

the

as

to

how

defendant.”

best

to

United

States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
Because

McClam

did

not

move

the

district

court

to

withdraw his guilty plea, any errors in the Rule 11 hearing are
reviewed for plain error.

United States v. Martinez, 277 F.3d

517, 525 (4th Cir. 2002).

“To establish plain error, [McClam]

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) (citation
omitted).

Even

if

McClam

satisfies

these

requirements,

the

court retains discretion to correct the error, which it should
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not exercise unless the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.

Id.

(internal quotation marks and citation omitted).
A review of the record reveals that the district court
complied

with

the

requirements

of

Rule

11,

ensuring

that

McClam’s plea was knowing and voluntary, that he understood the
rights he was giving up by pleading guilty and the sentence he
faced,
guilty.

and

that

he

committed

the

offense

to

which

he

pled

We accordingly affirm McClam’s conviction.
Finally, counsel questions whether McClam’s sentence

was legal.

A sentence is reviewed for reasonableness under an

abuse of discretion standard.
38, 51 (2007).

Gall v. United States, 552 U.S.

This review requires consideration of both the

procedural and substantive reasonableness of a sentence.

Id.;

see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
After determining whether the district court properly calculated
the defendant’s advisory guideline range, we must decide whether
the district court considered the 18 U.S.C. § 3553(a) (2006)
factors, analyzed the arguments presented by the parties, and
sufficiently explained the selected sentence.
575-76;

see

United

(4th Cir. 2009).

States

v.

Carter,

564

Lynn, 592 F.3d at
F.3d

325,

330

Properly preserved claims of procedural error

are subject to harmless error review.

Lynn, 592 F.3d at 576.

If the sentence is free of significant procedural error, the
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appellate court reviews the substantive reasonableness of the
sentence.

Id. at 575; United States v. Pauley, 511 F.3d 468,

473 (4th Cir. 2007).
Here,

the

court

properly

calculated

the

advisory

Guidelines range and imposed a sentence significantly below the
low

end

of

range.

factors

§ 3553(a)

that

with

individualized

Moreover,
McClam

explanation

for

at

the

court

length

the

discussed

and

sentence

offered

imposed.

the
an
We

conclude that the sentence was not procedurally unreasonable.
Once the court has determined there is no procedural
error, it must then consider the substantive reasonableness of
the

sentence,

circumstances.

taking

into

account

Gall, 552 U.S. at 51.

the

totality

of

the

Here, the sentence was

significantly lower than the low end of the advisory Guidelines
range, and we conclude it was 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 his client, in writing,
of his right to petition the Supreme Court of the United States
for further review.

If the client requests that a petition be

filed,

believes

but

counsel

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
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a copy thereof was served on the client.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED

6