US v. Joshua Gant, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00437-JAB-1 Copies to all parties and the district court/agency. [999729618].. [15-4324]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4324

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSHUA GANT, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:14-cr-00437-JAB-1)

Submitted:

November 24, 2015

Before NIEMEYER
Circuit Judge.

and

MOTZ,

Decided:

Circuit

Judges,

and

January 5, 2016

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.

Stephen F. Wallace, WALLACE LAW FIRM, High Point, North
Carolina, for Appellant.
Randall Stuart Galyon, OFFICE OF THE
UNITED
STATES
ATTORNEY,
Greensboro,
North
Carolina,
for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Joshua Gant, Jr., pled guilty pursuant to a written plea
agreement

to

one

count

of

distribution

of

a

mixture

and

substance containing a detectable amount of cocaine base, in
violation
district
months.

of

21

court

U.S.C.
imposed

§ 841(a)(1),
a

(b)(1)(C)

within-Guidelines

(2012).

sentence

The
of

24

In accordance with Anders v. California, 386 U.S. 738

(1967), Gant’s counsel has filed a brief certifying that there
are no meritorious issues for appeal, but suggesting that the
court review the reasonableness of Gant’s sentence.

Gant has

filed a pro se supplemental brief arguing that (1) the district
court lacked jurisdiction over his offense because it occurred
entirely

within

North

Carolina;

(2)

his

sentence

is

substantively unreasonable; and (3) his sentence is contrary to
United

States

v.

Simmons,

649

F.3d

237

(4th

Cir.

2011)

(en

banc).
Turning first to the validity of Gant’s guilty plea, to
assure that a defendant’s plea is knowing and voluntary, Fed. R.
Crim. P. 11 requires a district court to “inform the defendant
of,

and

determine

that

he

understands,

the

nature

of

the

charge(s) to which the plea is offered, any mandatory minimum
penalty,

the

maximum

possible

penalty

and

various

rights.”

United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
Where, as here, a defendant did not move to withdraw his guilty
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plea,

we

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review

the

plea

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hearing

for

plain

error.

States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014).

United

A defendant

can only satisfy the plain error standard if he shows that, but
for

an

error

by

the

district

court

during

the

Rule

11

proceeding, there is a reasonable probability that he would not
have entered his plea.

United States v. Massenburg, 564 F.3d

337, 343 (4th Cir. 2009).
the

district

court

Our review of the record reveals that

substantially

complied

with

Rule

11

by

ensuring that Gant was competent to plead guilty and that he
knowingly

and

consultation

voluntarily

with

counsel.

entered
We

his

further

guilty

plea

after

conclude

that

Gant’s

argument that the district court lacked jurisdiction to take his
guilty

plea

is

without

merit

as

Congress,

pursuant

to

its

Commerce Clause power, may regulate the intrastate possession of
a controlled substance where there is an interstate market for
the controlled substance.

Gonzales v. Raich, 545 U.S. 1, 17-22

(2005).
We review a sentence for reasonableness, applying an abuse
of discretion standard.
(2007).
if

the

Gall v. United States, 552 U.S. 38, 46

We first review for significant procedural error, and
sentence

substantive

is

free

reasonableness.

from

such
Id.

at

error,
51.

we

then

consider

Procedural

error

includes improperly calculating the Sentencing Guidelines range,
treating the Guidelines as mandatory, failing to consider the 18
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U.S.C.

§

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3553(a)

(2012)

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factors,

explain the selected sentence.

and

Id.

failing

to

adequately

Substantive reasonableness

is determined by considering the totality of the circumstances,
and if the sentence imposed falls within or below the properlycalculated

Guidelines

reasonableness.
Cir.

2012).

range,

we

apply

a

presumption

of

United States v. Susi, 674 F.3d 278, 289 (4th
Our

procedural

error

presumption

of

review
nor

of

the

anything

reasonableness

record

reveals

overcoming

that

neither

the

accompanies

a

applicable

the

district

court’s imposition of a within-Guidelines sentence. *
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

district

court’s

judgment.

This court requires that counsel inform Gant, in writing, of the
right to petition the Supreme Court of the United States for
further review.

If Gant requests that a petition be 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 Gant.

*

Where Gant was neither subject to a mandatory minimum
penalty nor a sentencing enhancement, no rule of law established
in United States v. Simmons, 649 F.3d 237, is applicable to his
sentence.

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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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