US v. Calvin Dixon

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:10-cr-00277-PMD-4 Copies to all parties and the district court/agency. [999381843].. [13-4688]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4688

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CALVIN LEVAR DIXON, a/k/a Booga, a/k/a Calvin Dion,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston.
Patrick Michael Duffy, Senior
District Judge. (2:10-cr-00277-PMD-4)

Submitted:

June 11, 2014

Decided:

June 24, 2014

Before DIAZ and WYNN, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Affirmed by unpublished per curiam opinion.

Bradley M. Kirkland, BRADLEY M. KIRKLAND, LLC, Columbia, South
Carolina, for Appellant. Sean Kittrell, Assistant United States
Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Calvin

Levar

Dixon

pleaded

guilty,

pursuant

to

a

written plea agreement, to one count of conspiracy to possess
with intent to distribute 280 grams or more of crack cocaine,
500 grams or more of cocaine, 1000 grams or more of heroin, a
quantity

of

marijuana,

distribution,
distribute

three

heroin,

as

well

counts
one

of

count

as

maintaining

possession

of

a

place
intent

possession

with

to

intent

with

for

to

distribute crack cocaine, and one count of unlawful possession
of a firearm by a convicted felon.
sentence of imprisonment.
Anders

v.

California,

He received a 264-month

Counsel has filed a brief pursuant to
386

U.S.

738

(1967),

finding

no

meritorious grounds for appeal but questioning whether Dixon’s
guilty plea was knowing and voluntary and whether the district
court

imposed

supplemental

a

reasonable

brief

raising

sentence.

Dixon

ineffective

assistance

related to the guilty plea hearing.

filed

a
of

pro

se

counsel

The Government declined to

file a brief or raise the appeal waiver.

Finding no error, we

affirm.
Prior to accepting a plea, a trial 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
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he

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relinquishing

by

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pleading

guilty.

Fed.

R.

Crim.

P.

11(b)(1); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir.
1991).

Additionally, the district court must ensure that the

defendant’s plea was supported by an independent factual basis,
was voluntary, and did not result from force or threats.
R. Crim. P. 11(b)(2)-(3); DeFusco, 949 F.2d at 119-20.

Fed.

Because

Dixon did not seek to withdraw his guilty plea or otherwise
preserve any allegation of Rule 11 error, this court reviews his
plea colloquy for plain error.

United States v. Martinez, 277

F.3d 517, 525 (4th Cir. 2002); see Henderson v. United States,
133 S. Ct. 1121, 1126 (2013) (discussing plain error standard).
Our

review

of

the

record

indicates

that

the

district

court

substantially complied with Rule 11 in accepting Dixon’s plea.
Accordingly,

we

conclude

that

Dixon’s

plea

was

knowing

and

voluntary and was supported by an adequate factual basis, and,
consequently, that the plea was final and binding.

See United

States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc).
We review a sentence for reasonableness, applying an
abuse of discretion standard.

Gall v. United States, 552 U.S.

38,

first

46

(2007).

The

court

reviews

for

significant

procedural error, and if the sentence is free from such error,
it

then

considers

substantive

reasonableness.

Id.

at

51.

Procedural error includes improperly calculating the Sentencing
Guidelines range, treating the Guidelines range as mandatory,
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failing to consider the 18 U.S.C. § 3553(a) (2012) factors, and
failing to explain adequately the selected sentence.
district

court

must

make

an

“individualized

Id.

The

assessment”

by

applying the relevant § 3553(a) factors to the case’s specific
circumstances.
Cir. 2009).
or

United States v. Carter, 564 F.3d 325, 328 (4th

The individualized assessment need not be elaborate

lengthy,

but

it

appellate review.

must

be

adequate

Id. at 330.

to

allow

meaningful

Substantive reasonableness is

determined by considering the totality of the circumstances, and
if

the

range,

sentence
we

is

apply

within

a

the

properly-calculated

presumption

of

Guidelines

reasonableness.

United

States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012).
In

imposing

Dixon’s

sentence,

the

district

court

correctly calculated the Guidelines range, did not abuse its
discretion in granting a variance for a 1:1 ratio of powder to
crack cocaine, and specifically considered the advisory nature
of the Guidelines, the § 3553(a) factors, and Dixon’s individual
circumstances.

Accordingly, we conclude that Dixon’s 264-month

sentence is both procedurally and substantively reasonable.
In

accordance

with

Anders,

we

have

reviewed

the

record, including Dixon’s pro se claim of ineffective assistance
of counsel, and have found no meritorious issues for appeal.
therefore affirm Dixon’s conviction and sentence.

We

This court

requires that counsel inform Dixon, in writing, of the right to
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Supreme

Court

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petition

the

of

the

United

States

for

further

review.

If Dixon 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 Dixon.
facts

and

materials

legal
before

We dispense with oral argument because the

contentions

are

adequately

this

and

argument

court

presented

would

not

in

the

aid

the

decisional process.

AFFIRMED

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