US v. Parish Gagum

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:11-cr-00414-RBH-1 Copies to all parties and the district court/agency. [998923860].. [12-4143]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4143

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PARISH GAGUM,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:11-cr-00414-RBH-1)

Submitted:

August 22, 2012

Decided: August 24, 2012

Before WILKINSON, GREGORY, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, Elizabeth V. Tilley, ELIZABETH VAUGHN TILLEY LAW
OFFICE, Myrtle Beach, South Carolina, for Appellant. William E.
Day, II, Assistant United States Attorney, Florence, South
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Parish Gagum pled guilty without a plea agreement to
one

count

of

obligations,

falsely

in

making

violation

of

and

18

forging

U.S.C.A.

United

§ 471

States

(West

2012), and was sentenced to fourteen months in prison.

Supp.

Counsel

filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting that he has reviewed “both the facts and legal
issues of this case” and is of the opinion “that there are no
legal issues that were not properly raised or disposed of by the
trial

court”

and

“no

grounds

for

an

appeal[.]”

Counsel

nonetheless raises as possible issues for review whether the
district court complied with Fed. R. Crim. P. 11’s requirements
when

it

accepted

fourteen-month

Gagum’s

sentence

guilty

is

plea,

reasonable.

and
The

whether

Gagum’s

Government

has

declined to file a responsive brief and Gagum has not filed a
pro se supplemental brief, despite receiving notice of his right
to do so.

Finding no error, we affirm.
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.
11(b).

Fed. R. Crim. P.

“In reviewing the adequacy of compliance with Rule 11,
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this Court should accord deference to the trial court’s decision
as

to

how

best

defendant.”

to

conduct

the

mandated

colloquy

with

the

United States v. DeFusco, 949 F.2d 114, 116 (4th

Cir. 1991).
Because

Gagum

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, [Gagum]

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).

Even if Gagum

satisfies these requirements, we retain discretion to correct
the

error,

which

we

should

not

exercise

unless

the

error

seriously affects the fairness, integrity or public reputation
of judicial proceedings.

Id.

A review of the record establishes that the district
court

complied

with

Rule

11’s

requirements,

ensuring

that

Gagum’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

Accordingly,

we

the

discern

offense
no

error

to

which

in

he

the

pled

district

court’s acceptance of Gagum’s guilty plea.
We
United

also

States

v.

find

no

Booker,

error
543

in

U.S.
3

Gagum’s
220

sentence.

(2005),

we

After

review

a

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sentence

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for

reasonableness,

standard of review.
(2007).
ensure

using

an

abuse

of

discretion

Gall v. United States, 552 U.S. 38, 51

The first step in this review requires the court to
that

the

procedural error.
(4th

Pg: 4 of 6

Cir.

calculate

district

committed

no

significant

United States v. Evans, 526 F.3d 155, 160-61

2008).
(or

court

Procedural

improperly

errors

calculating)

include
the

“failing

Guidelines

to

range,

treating the Guidelines as mandatory, failing to consider the
[18

U.S.C.A.

selecting

a

§ 3553(a)
sentence

(West
based

2000
on

&

Supp.

clearly

2012)]

erroneous

factors,

facts,

or

failing to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range.”

Gall,

552 U.S. at 51.
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court,

we

review

for

abuse

of

discretion”

and

will

reverse

unless we can conclude “that the error was harmless.”

United

States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).

If, and only

if, this court finds the sentence procedurally reasonable can
the

court

consider

sentence imposed.

the

substantive

reasonableness

of

the

United States v. Carter, 564 F.3d 325, 328

(4th Cir. 2009).
We

discern

no

procedural

error by the district court.

or

substantive

sentencing

In particular, a review of Gagum’s
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sentencing hearing establishes that the district court correctly
attributed him with a total offense level of fifteen.
Sentencing

Guidelines

Manual

§ 2B5.1

(2010).

In

See U.S.

conjunction

with his category I criminal history, Gagum’s Guidelines range
was calculated at eighteen to twenty-four months in prison.
After
argue

regarding

affording
an

counsel

appropriate

an

adequate

sentence

under

opportunity
the

to

§ 3553(a)

factors—during which time defense counsel asked for a variant
sentence within an eight-to-fourteen-month Guidelines range—and
affording Gagum an opportunity to allocute, the district court
imposed a fourteen-month variant sentence.

The district court’s

explanation for Gagum’s sentence allows for sufficient appellate
review.

See Carter, 564 F.3d at 328 (“[T]he district court must

state in open court the particular reasons supporting its chosen
sentence” and “set forth enough to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned
basis for exercising his own legal decisionmaking authority”)
(internal quotation marks omitted).

We find that the variant

sentence below the advisory Guidelines range is substantively
reasonable.
We have examined the entire record in accordance with
our

obligations

under

issues for appeal.
judgment.

Anders

and

have

found

no

meritorious

Accordingly, we affirm the district court’s

This court requires that counsel inform Gagum, in
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writing,

of

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the

right

to

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petition

United States for further review.

the

Supreme

Court

of

the

If Gagum requests that a

petition be filed, but counsel believes 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 a copy thereof was served on Gagum.

We dispense with

oral

contentions

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

the

court

are
and

argument would not aid the decisional process.

AFFIRMED

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