US v. John Myer

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:08-cr-01072-RBH-6 Copies to all parties and the district court/agency. [998503326] [10-4443]

Case: 10-4443

Document: 27

Date Filed: 01/14/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4443

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN ROBERT MYERS,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:08-cr-01072-RBH-6)

Submitted:

December 21, 2010

Decided:

January 14, 2011

Before DUNCAN, DAVIS, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Russell W. Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant.
Arthur Bradley Parham, Rose Mary
Sheppard Parham, Assistant United States Attorneys, Florence,
South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Case: 10-4443

Document: 27

Date Filed: 01/14/2011

Page: 2

PER CURIAM:
Appellant John Robert Myers pled guilty to one count
of conspiracy to distribute fifty or more grams of cocaine base
and five kilograms or more of cocaine, in violation of 21 U.S.C.
§ 841(a)(1),(b)(1)(A)

(2006).

The

Myers to 120 months’ imprisonment.

district

court

sentenced

Myers timely appealed.

Myers’ attorney has filed a brief in accordance with
Anders

v.

California,

adequacy

of

Myers’

hearing;

whether

386

U.S.

Federal

Myers’

738

Rule

of

knowingly

(1967),

and

questioning

Criminal

Procedure

voluntarily

waived

the
11
his

appellate rights; and whether Amendment 706 to the United States
Sentencing

Guidelines

applies

to

this

case.

Myers

received

notice of his right to file a pro se supplemental brief, but did
not do so.

Because we find no meritorious grounds for appeal,

we affirm.
First,

Myers

adequately

advised

him

relatedly,

whether

his

knowing and voluntary.

questions
during
waiver

whether
his
of

the

Rule
his

11

district

court

hearing,

appellate

rights

and,
was

Prior to accepting a guilty plea, a

district court must conduct a plea colloquy in which it informs
the defendant of, and determines that the defendant comprehends,
the nature of the charge to which he is pleading guilty, any
mandatory

minimum

penalty,

the

maximum

possible

penalty

he

faces, and the rights he is relinquishing by pleading guilty.
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Case: 10-4443

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Date Filed: 01/14/2011

Page: 3

Fed. R. Crim. P. 11(b); United States v. DeFusco, 949 F.2d 114,
116 (4th Cir. 1991).

“In reviewing the adequacy of compliance

with Rule 11, this Court should accord deference to the trial
court’s decision as to how best to conduct the mandated colloquy
with the defendant.”

DeFusco, 949 F.2d at 116.

We have thoroughly reviewed the record in this case,
and conclude that the district court complied with the mandates
of Rule 11 in accepting Myers’ guilty plea.

Thus, we hold that

the record affirmatively shows there was a factual basis for
Myers’

plea,

Myers

understood

the

constitutional

rights

he

waived in pleading guilty, and Myers’ guilty plea — including
his appellate waiver — was knowing and voluntary.
Next,

Myers

questions

whether

Amendment

706

to

the

United States Sentencing Guidelines, which provided for a twolevel downward adjustment to “‘the base offense level assigned
to each threshold quantity of crack listed in the Drug Quantity
Table in section 2D1.1,’” should have resulted in a reduced base
United States v. Brewer, 520 F.3d

offense level in this case.
367, 373 (4th Cir. 2008).
already

received

the

The record affirmatively shows Myers

benefit

of

Amendment

706,

as

his

base

offense level was calculated pursuant to the 2008 edition of the
Sentencing

Guidelines,

November 1, 2007.

and

Amendment

706

became

effective

Brewer, 520 F.3d at 373 (citing United States

3

Case: 10-4443

Sentencing

Document: 27

Comm’n,

Report

Date Filed: 01/14/2011

Congress:

to

Page: 4

and

Cocaine

Federal

Sentencing Policy (May 2007)).
Finally, we conclude Myers’ sentence was reasonable.
This

court

reviews

a

district

court’s

sentence

reasonableness under an abuse-of-discretion standard.

for

Gall v.

United States, 552 U.S. 38, 51 (2007); see also United States v.
Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007).
defendant, a district court must:

When sentencing a

(1) properly calculate the

Guidelines range; (2) determine whether a sentence within that
range serves the factors set out in 18 U.S.C. § 3553(a) (2006);
(3) implement mandatory statutory limitations; and (4) explain
Pauley, 511 F.3d at 473.

its reasons for selecting a sentence.
In

the

Fourth

Sentencing

Circuit,

Guidelines

“[a]

range

sentence
is

within

presumptively

the

proper

reasonable.”

United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see
also

Rita

v.

United

States,

551

U.S.

338,

347-56

(2007)

(upholding presumption of reasonableness for a within-Guidelines
sentence).
Here,

the

district

court

followed

the

necessary

procedural steps in sentencing Myers, properly calculating the
Guidelines

sentence,

considering

sentencing

Myers

the

crime.

to

the

mandatory

§

3553(a)

minimum

factors,

sentence

for

and
his

Hence, we determine that the sentence imposed by the

district court was reasonable.
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Page: 5

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 Myers, in writing, of the right to
petition

the

Supreme

Court

of

the

United

States

for

further

review.

If Myers requests that a petition be filed, but counsel

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

move

in

representation.

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Myers.
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

5