US v. Willie Fleming
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to file supplemental brief [999902809-2] Originating case number: 1:14-cr-00400-RDB-1 Copies to all parties and the district court/agency. .. [15-4617]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
WILLIE HERNANDEZ FLEMING,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Richard D. Bennett, District Judge.
January 25, 2017
February 1, 2017
Before MOTZ, TRAXLER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Arthur S. Cheslock, Baltimore, Maryland, for Appellant.
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Willie Hernandez Fleming pled guilty, pursuant to a written
plea agreement, to conspiracy to commit Hobbs Act robbery, in
violation of 18 U.S.C. § 1951(a) (2012).
The district court
sentenced Fleming within his advisory Guidelines range to 137
In accordance with Anders v. California,
questioning whether the district court complied with Fed. R.
Prior to accepting a guilty plea, a court must conduct a
determines that the defendant understands, the nature of the
penalty he faces, and the various rights he is relinquishing by
Fed. R. Crim. P. 11(b)(1); United States v.
Fleming’s attorney also questions the validity of the
appeal waiver in the plea agreement.
Because the Government
does not seek to enforce the waiver, and we will not enforce the
waiver sua sponte, we have reviewed the case in accordance with
United States v. Poindexter, 492 F.3d 263, 271 (4th
Cir. 2007); see United States v. Jones, 667 F.3d 477, 486 (4th
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DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
The district court
supported by a sufficient factual basis, and not the result of
force, threats, or promises not contained in the plea agreement.
Fed. R. Crim. P. 11(b)(2)-(3); DeFusco, 949 F.2d at 119-20.
Because Fleming did not move to withdraw his guilty plea in
the district court or otherwise preserve any allegation of Rule
11 error, we review the plea colloquy for plain error.
States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014).
on a claim of plain error, [Fleming] must demonstrate not only
that the district court plainly erred, but also that this error
affected his substantial rights.”
Id. at 816.
In the guilty
probability that, but for the error, he would not have pleaded
Id. (internal quotation marks omitted).
that Fleming has not established error, plain or otherwise, in
independent factual basis.
Gall v. United States, 552 U.S. 38, 41 (2007).
review entails appellate consideration of both the procedural
and substantive reasonableness of the sentence.
Id. at 51.
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determining procedural reasonableness, we consider whether the
Sentencing Guidelines range, gave the parties an opportunity to
Gall, 552 U.S. at 49-51.
If there are no
reasonableness of a sentence, evaluating “the totality of the
“presumption can only be rebutted by showing that the sentence
is unreasonable when measured against the 18 U.S.C. § 3553(a)
United States v. Louthian, 756 F.3d 295, 306 (4th
accordance with Anders, we have reviewed the entire record in
found no meritorious grounds for appeal.
We therefore grant
Fleming’s motion to file a supplemental brief and affirm the
district court’s judgment.
This court requires that counsel
inform Fleming, in writing, of the right to petition the Supreme
requests that a petition be filed, but counsel believes that
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such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation.
motion must state that a copy thereof was served on Fleming.
We dispense with oral argument because the facts and legal
this court and argument would not aid the decisional process.
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