US v. Tracy Anderson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cr-00219-FDW-1 Copies to all parties and the district court/agency. [999658206].. [14-4867]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4867

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRACY CLARENCE ANDERSON,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
Chief District Judge. (3:13-cr-00219-FDW-1)

Submitted:

September 9, 2015

Decided:

September 11, 2015

Before SHEDD, WYNN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Reggie E. McKnight, MCKNIGHT LAW FIRM, P.L.L.C., Charlotte,
North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Tracy

Anderson

appeals

his

180-month

sentence

imposed

following his guilty plea to one count of bank robbery by force
and violence, in violation of 18 U.S.C. § 2113(a) (2012).

On

appeal, Anderson’s counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), certifying that there are no
meritorious

grounds

for

appeal

but

questioning

whether

the

district court erred in applying a career offender enhancement.
Anderson has not filed a supplemental pro se brief despite being
advised of his right to do so and despite being granted two
extensions of time to file.

Finding no meritorious grounds for

appeal, we affirm.
On

appeal,

counsel

questions

whether

the

district

court

improperly designated Anderson a career offender based, in part,
on

Anderson’s

person.

North

Anderson

Carolina

raised

conviction

this

objection

of

larceny

before

the

from

the

district

court, but unequivocally withdrew the objection at sentencing.
“[W]aiver is the intentional relinquishment or abandonment of a
known right.”

United States v. Olano, 507 U.S. 725, 733 (1993)

(internal quotation marks omitted).

“A party who identifies an

issue, and then explicitly withdraws it, has waived the issue,”
and the waived issue “is not reviewable on appeal, even for
plain error.”

United States v. Robinson, 744 F.3d 293, 298 (4th

Cir.) (internal quotation marks omitted), cert. denied, 135 S.
2

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(2014).

Thus,

we

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conclude

that,

because

Anderson

withdrew his objection to the career offender enhancement on the
basis

of

his

conviction

of

larceny

from

the

person,

he

has

waived appellate review of this issue.
Because Anderson did not move to withdraw his guilty plea
in the district court, we review the validity of his plea for
plain error.

United States v. Aplicano-Oyuela, 792 F.3d 416,

422 (4th Cir. 2015).

The record reveals that the district court

substantially complied with Fed. R. Crim. P. 11 in accepting
Anderson’s plea, which was knowing and voluntary.
Finally,

in

fulfilling

our

duty

under

Anders,

we

have

reviewed the sentence and conclude that it is procedurally and
substantively

reasonable.

The

sentence

is

procedurally

reasonable inasmuch as the district court properly calculated
the applicable guidelines range and appropriately explained the
sentence in the context of the relevant 18 U.S.C. § 3553(a)
(2012) factors.
(2007).

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

Further,

presumptively

the

substantively

within-Guidelines
reasonable,

sentence

United

States

is
v.

Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421 (2014), and we discern no basis to rebut that presumption.
In

accordance

with

Anders,

we

have

reviewed

the

entire

record in this case and have found no meritorious issues for
appeal.

We therefore affirm the judgment of the district court.
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This court requires that counsel inform Anderson, in writing, of
the right to petition the Supreme Court of the United States for
further review.

If Anderson 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 Anderson.

We dispense with oral argument because

the facts and legal contentions are adequately presented in the
materials

before

this

court

and

argument

would

not

aid

the

decisional process.
AFFIRMED

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