US v. Tony Lee Drum

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:14-cr-00232-MOC-1 Copies to all parties and the district court/agency. [999781024].. [15-4474]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4474

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY LEE DRUM,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:14-cr-00232-MOC-1)

Submitted:

March 14, 2016

Decided:

March 24, 2016

Before KING, WYNN, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Randolph Marshall Lee, Charlotte, North Carolina, for Appellant.
Jill Westmoreland Rose, United States Attorney, Amy E. 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Unpublished opinions are not binding precedent in this circuit.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:
Tony

Lee

Drum

pled

guilty

to

two

counts

of

harboring,

transporting, providing, obtaining, and maintaining a person who
had not attained the age of 18 years, knowing that the person
would be caused to engage in a commercial sex act, in violation
of

18

U.S.C.

§ 1591(a)(1),

(b)(2)

(2012),

and

two

counts

of

transporting an individual who had not attained the age of 18
years in interstate commerce with the intent that the individual
engage
(2012).

in

prostitution,

in

violation

of

18

U.S.C.

§ 2423(a)

A presentence report (PSR) calculated Drum’s Guidelines

range under the U.S. Sentencing Guidelines Manual (2014) at 188
to

235

months’

imprisonment.

Drum

objected

to

the

PSR’s

assignment of enhancements under USSG §§ 2G1.3(b)(2)(B), (4)(A),
and

3A1.1(b)(1).

After

conferring

with

Drum,

however,

his

counsel stated at sentencing that Drum would “abandon” those
objections

and

recommendation

that
to

the

months’ imprisonment.
concurrent

terms

the

of

parties

district

court

were
for

making
a

a

sentence

joint
of

188

The district court sentenced Drum to four
188

months’

imprisonment

and

supervised

release for a term of life.
On appeal, Drum challenges his sentence, arguing that the
waiver

of

his

right

to

object,

or

the

withdrawal

of

his

objections, was not knowing and voluntary because the district
court did not inquire whether he personally wished to withdraw
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his objections.

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He thus asserts that, as a consequence, this

court should vacate his sentence.
We review de novo the validity of a defendant’s waiver of
objections to a PSR, examining the totality of the circumstances
to

determine

voluntary.

whether
United

(4th Cir. 2014).

the

States

defendant’s
v.

waiver

Robinson,

744

was

knowing

F.3d

293,

and

298-99

After review of the record and the parties’

briefs, we conclude that, even if Drum did not validly waive his
challenge to the application of the Guidelines enhancements, he
fails to establish any plain error warranting vacatur of his
sentence.

See United States v. Hargrove, 625 F.3d 170, 183-84

(4th

2010)

Cir.

(holding

that,

where

specific

allegation

of

sentencing error is not made below, review on appeal is for
plain error); see also Henderson v. United States, 133 S. Ct.
1121, 1126-27, 1130-31 (2013) (setting forth elements of plain
error standard).

Drum does not argue that the district court

erred in applying the enhancements under USSG §§ 2G1.3(b)(2)(B),
(4)(A), and 3A1.1(b)(1).
error

in

the

application

substantial rights.
267,

273

(4th

Cir.

He further has not asserted that any
of

those

enhancements

affected

his

See United States v. Hernandez, 603 F.3d
2010)

(“To

demonstrate

that

a

sentencing

error affected his substantial rights, Hernandez would have to
show that, absent the error, a different sentence might have
been imposed.”).

He also presents no argument challenging the
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imposition

by

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the

district

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court

of

the

lifetime

term

of

supervised release.
Because Drum fails to establish plain error by the district
court, the predicate to his claim on appeal that his sentence
should be vacated is not established.

We therefore reject the

claim and affirm the district court’s judgment.

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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