US v. Justin Gamble

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:08-cr-00928-HMH-1 Copies to all parties and the district court/agency. [998580115].. [10-5047]

Appeal: 10-5047

Document: 33

Date Filed: 05/02/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5047

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JUSTIN CLIFFORD GAMBLE,
Defendant – Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Anderson.
Henry M. Herlong, Jr., Senior
District Judge. (8:08-cr-00928-HMH-1)

Submitted:

April 22, 2011

Decided:

May 2, 2011

Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

C. Fredric Marcinak, III, SMITH MOORE LEATHERWOOD, LLP,
Greenville, South Carolina, for Appellant.
William N. Nettles,
United States Attorney, Leesa Washington, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Justin

Clifford

Gamble

pleaded

guilty

to

possession

with intent to distribute and distribution of methamphetamine,
in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(C) (West 1999
& Supp.

2010)

furtherance
U.S.C.

(Count

of

Three),

a

trafficking

§ 924(c)(1)

drug

(Count

and

possessing
crime,

Four).

The

in

Counts One and Two of the indictment.

a

firearm

violation

Government

of

in
18

dismissed

Gamble was sentenced to

forty-six months’ imprisonment for Count Three, the bottom of
the Guidelines range, and a consecutive sixty-month sentence for
Count Four, the mandatory statutory minimum.
In this appeal, Gamble first argues that his guilty
plea was not knowing and voluntary.

He asserts that he was

instructed to plead guilty by his defense counsel and that his
plea was entered under duress.
Gamble did not move to withdraw his guilty plea and we
therefore review the adequacy of the plea pursuant to Fed. R.
Crim.

P.

11

for

plain

error.

See

United

States

v.

Vonn,

535 U.S. 55, 58-59 (2002) (holding defendant who lets Rule 11
error pass without objection in the district court must satisfy
the plain-error test); United States v. Massenburg, 564 F.3d
337,

342

(4th Cir. 2009).

To

establish

plain

error,

Gamble

“must show: (1) an error was made; (2) the error is plain; and
(3) the error affects substantial rights.”
2

Massenburg, 564 F.3d

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at 342-43.

Date Filed: 05/02/2011

Page: 3 of 6

Even if such error is found, it is within this

court’s discretion to notice the error, and we do so “only if
the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.”

Massenburg, 564 F.3d at

343 (internal quotation marks omitted).
We evaluate a guilty plea based on “the totality of
the

circumstances”

surrounding

States v.

Moussaoui,

591

F.3d

properly

conducted

Rule

11

the
263,

guilty
278

colloquy

plea.

United

(4th Cir. 2010).
creates

a

A

“strong

presumption” that a plea of guilty was taken appropriately and
is “final and binding.”

United States v. Lambey, 974 F.2d 1389,

1394 (4th Cir. 1992) (en banc).
court

carry

a

strong

“Solemn declarations in open

presumption

of

verity.

The

subsequent

presentation of conclusory allegations unsupported by specifics
is subject to summary dismissal, as are contentions that in the
face

of

the

record

are

wholly

incredible.”

Blackledge

v.

Allison, 431 U.S. 63, 74 (1977).
Here, Gamble has not identified any defect in the Rule
11 hearing.
plea

was

not

While under oath, Gamble stated that his guilty
the

product

of

threats,

force,

or

coercion.

Although Gamble asserts that he did not understand his guilty
plea would result in a five-year consecutive sentence for Count
Four, the district specifically advised him of this fact.

We

therefore conclude that Gamble’s allegation that his attorney
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coerced him into pleading guilty is incredible in the face of
the record.

The totality of the circumstances establishes that

his guilty plea was knowingly and voluntarily entered.
Next, Gamble argues that the district court committed
procedural error in sentencing him because it failed to consider
its authority to impose a variance sentence and failed to make
an individualized assessment.
We review a sentence for reasonableness, applying a
deferential

abuse-of-discretion

States,

U.S.

552

38,

51

standard.

(2007).

A

Gall

United

court

district

v.

commits

procedural error when it “treat[s] the guidelines as mandatory,”
id., or “‘fail[s] to adequately explain the chosen sentence.’”
United

States

v.

Lynn,

592

F.3d

(quoting Gall, 552 U.S. at 51).

572,

575

(4th Cir. 2010)

While district judges must

provide in each case a particularized assessment explaining why
the sentence imposed is proper, they need not “robotically tick
through

[18 U.S.C.]

§ 3553(a)’s

[(2006)]

every

subsection.”

United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).
Moreover, “when a judge decides simply to apply the Guidelines
to

a

particular

case,

lengthy explanation.”

doing

so

will

not

necessarily

require

Rita v. United States, 551 U.S. 338, 356

(2007).
Here,

Gamble

asked

the

district

court

to

take

his

efforts to turn his life around into account, but he did not
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Date Filed: 05/02/2011

request any particular sentence.

Page: 5 of 6

Consequently, we review for

plain error Gamble’s claim that the district court committed
procedural error in failing to recognize its authority to impose
a variance sentence.

Lynn, 592 F.3d at 577.

Gamble argues the

district court misunderstood its authority to impose a variance
statement based on the court’s statement: “I’m going to give you
under

the

guidelines

the

lowest

sentence

I

can

give

you.”

Because there were no objections to the presentence report and
no

request

for

a

sentence

outside

the

Guidelines

range,

we

conclude that the court’s statement reflects its assessment of
an appropriate sentence in light of an apparent agreement that
Gamble’s sentence should be within the Guidelines range.
We

conclude

that

the

district

court

adequately

discharged its responsibility to explain the sentence imposed
with sufficient detail to allow for meaningful appellate review.
See Rita, 551 U.S. at 359.

Gamble never requested a sentence

outside his Guidelines range and the only argument he presented
to the court at sentencing concerned his family life, his lack
of criminal history, and his efforts to turn his life around.
The district court credited Gamble’s efforts, stating, “I am
impressed that you are doing everything you can now to turn your
life around.”

Accordingly, “the record makes clear that the

sentencing judge considered the evidence and arguments,” id.,
and concluded a sentence at the bottom of the Guidelines range
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was proper.

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Id. at 357 (“Circumstances may well make clear that

the judge rests his decision upon the Commission’s own reasoning
that the Guidelines sentence is a proper sentence.”);

United

States v. Hernandez, 603 F.3d 267, 271 (4th Cir. 2010).
We affirm the district court’s judgment.

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

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