US v. Brian McNair

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:11-cr-02342-RBH-1 Copies to all parties and the district court/agency. [999108852].. [12-4888]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4888

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRIAN MCNAIR,
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-02342-RBH-1)

Submitted:

May 13, 2013

Decided:

May 16, 2013

Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam
opinion.

John M. Ervin, III, LAW OFFICES OF JOHN M. ERVIN, III,
Darlington, South Carolina, for Appellant. Alfred William Walker
Bethea, Jr., Assistant United States Attorney, Florence, South
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Brian McNair pled guilty, pursuant to a written plea
agreement, to one count of possession with intent to distribute
cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)
(2006).

On

appeal,

counsel

has

filed

a

brief

pursuant

to

Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal but questioning whether the
district court complied with Fed. R. Crim. P. 11 at McNair’s
change of plea hearing and whether his sentence is reasonable.
McNair filed a pro se supplemental brief arguing that the Double
Jeopardy

Clause

prosecution.

of

the

Fifth

Amendment

bars

his

federal

Finding no error, we dismiss in part and affirm in

part.
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 charge 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)(1).

The

district

court

also

must

Fed. R. Crim. P.
ensure

that

the

defendant’s plea was voluntary, was supported by a sufficient
factual basis, and did not result from force or threats.
R.

Crim.

P.

11(b)(2),

(3).

Upon

2

review

of

the

Fed.

record,

we

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conclude

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that

the

district

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court

complied

with

Rule

11’s

requirements.
McNair

contends

that

his

federal

prosecution

is

unlawful because he had served a state sentence for the same
conduct.

The

protects

a

Double

Jeopardy
against

defendant

Clause
“the

of

the

Fifth

Amendment

of

cumulative

imposition

punishments for the same offense in a single criminal trial” and
“being

subjected

offense.”

to

successive

prosecutions

for

the

United States v. Goodine, 400 F.3d 202, 206 (4th Cir.

2005) (internal quotation marks and emphasis omitted).
the

dual

same

or

prosecution

separate
after

a

sovereigns

state

doctrine

prosecution

for

permits
the

However,
a

same

federal
offense.

Heath v. Alabama, 474 U.S. 82, 89 (1985); see also United States
v. Christmas, 222 F.3d 141, 145 (4th Cir. 2000) (citing Abbate
v.

United

States,

359

U.S.

187

(1959)).

We

conclude

that

McNair’s case is firmly within the dual sovereign exception.
Thus, we affirm McNair’s conviction.
Turning to McNair’s sentence, we note that McNair and
the Government stipulated to a sentence as provided by Fed. R.
Crim. P. 11(c)(1)(C).

Pursuant to 18 U.S.C. § 3742(a), (c)

(2006), “[w]here a defendant agrees to and receives a specific
sentence, he may appeal the sentence only if it was (1) imposed
in violation of the law, (2) imposed as a result of an incorrect
application

of

the

Guidelines,
3

or

(3)

is

greater

than

the

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sentence set forth in the plea agreement.”

United States v.

Calderon, 428 F.3d 928, 932 (10th Cir. 2005).
Court

lacks

jurisdiction

over

the

“Otherwise, the

appeal.”

Id.

Here,

the

district court imposed the specific sentence to which McNair
agreed, and the sentence did not exceed the statutory maximum.
Moreover, it could not have been imposed as a result of an
incorrect application of the Guidelines because it was based on
the parties’ Rule 11(c)(1)(C) agreement and not on the district
court’s calculation of the Guidelines.

See United States v.

Brown, 653 F.3d 337, 339-40 (4th Cir. 2011); United States v.
Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005).

We therefore

dismiss McNair’s appeal to the extent that he challenges the
stipulated sentence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm McNair’s conviction, and dismiss McNair’s
appeal to the extent he challenges his sentence.

This court

requires that counsel inform McNair, in writing, of the right to
petition

the

Supreme

review.

If

McNair

Court

of

requests

the
that

United
a

States

petition

be

for

further

filed,

but

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

may

move

representation.

in

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on McNair.
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Accordingly,

we

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dispense

with

oral

argument

because

the facts and legal contentions are adequately presented in the
materials

before

this

court

and

argument

will

not

aid

the

decisional process.
AFFIRMED IN PART;
DISMISSED IN PART

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