US v. Willie Fleming

Filing

UNPUBLISHED PER CURIAM OPINION filed.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. [1000014743].. [15-4617]

Appeal: 15-4617

Doc: 55

Filed: 02/01/2017

Pg: 1 of 5

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4617

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIE HERNANDEZ FLEMING,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:14-cr-00400-RDB-1)

Submitted:

January 25, 2017

Decided:

February 1, 2017

Before MOTZ, TRAXLER, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Arthur S. Cheslock, Baltimore, Maryland, for Appellant.
John
Francis
Purcell,
Jr.,
Assistant
United
States
Attorney,
Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 15-4617

Doc: 55

Filed: 02/01/2017

Pg: 2 of 5

PER CURIAM:
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
months’ imprisonment.
386

U.S.

certifying

738

In accordance with Anders v. California,

(1967),

there

are

Fleming’s
no

counsel

meritorious

has

grounds

filed
for

a

brief

appeal

but

questioning whether the district court complied with Fed. R.
Crim.

P.

Fleming’s

11

in

accepting

sentence

is

Fleming’s

reasonable. *

guilty
We

plea

affirm

and
the

whether
district

court’s judgment.
Prior to accepting a guilty plea, a court must conduct a
plea

colloquy

in

which

it

informs

the

defendant

of,

and

determines that the defendant understands, the nature of the
charge

to

which

he

is

pleading

guilty,

the

maximum

possible

penalty he faces, and the various rights he is relinquishing by
pleading guilty.

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
Anders.
United States v. Poindexter, 492 F.3d 263, 271 (4th
Cir. 2007); see United States v. Jones, 667 F.3d 477, 486 (4th
Cir. 2012).

2

Appeal: 15-4617

Doc: 55

Filed: 02/01/2017

Pg: 3 of 5

DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
also

must

ensure

that

the

defendant’s

The district court
plea

is

voluntary,

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).

United

“To prevail

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.”
plea

context,

a

defendant

Id. at 816.

“must

In the guilty

demonstrate

a

reasonable

probability that, but for the error, he would not have pleaded
guilty.”

Id. (internal quotation marks omitted).

We conclude

that Fleming has not established error, plain or otherwise, in
his

Rule

11

Fleming’s

hearing.

plea

The

knowing

and

district

court

voluntary,

and

correctly
supported

found
by

an

independent factual basis.
As

to

Fleming’s

reasonableness,
standard.”

sentence,

applying

“a

we

review

deferential

a

sentence

for

abuse-of-discretion

Gall v. United States, 552 U.S. 38, 41 (2007).

This

review entails appellate consideration of both the procedural
and substantive reasonableness of the sentence.
3

Id. at 51.

In

Appeal: 15-4617

Doc: 55

Filed: 02/01/2017

Pg: 4 of 5

determining procedural reasonableness, we consider whether the
district

court

properly

calculated

the

defendant’s

advisory

Sentencing Guidelines range, gave the parties an opportunity to
argue

for

an

§ 3553(a)

appropriate

(2012)

factors,

selected sentence.
procedural

sentence,
and

considered

sufficiently

Gall, 552 U.S. at 49-51.

errors,

we

the

then

consider

18

U.S.C.

explained

the

If there are no
the

substantive

reasonableness of a sentence, evaluating “the totality of the
circumstances.”
reasonable

if

Id.
it

is

at

51.

within

A
the

sentence
Guidelines

is

presumptively

range,

and

this

“presumption can only be rebutted by showing that the sentence
is unreasonable when measured against the 18 U.S.C. § 3553(a)
factors.”

United States v. Louthian, 756 F.3d 295, 306 (4th

Cir. 2014).
In

this

sentence

is

case,

the

record

procedurally

and

establishes

substantively

that

Fleming’s

reasonable.

In

accordance with Anders, we have reviewed the entire record in
this

case

and

Fleming’s

pro

se

supplemental

found no meritorious grounds for appeal.

briefs

and

have

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
Court

of

the

United

States

for

further

review.

If

Fleming

requests that a petition be filed, but counsel believes that
4

Appeal: 15-4617

Doc: 55

Filed: 02/01/2017

Pg: 5 of 5

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 Fleming.
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

5