The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4149
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BOBBY JOE BROWN, a/k/a Bobby Joe Brown, Jr.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00359-TDS-1)
Submitted: August 26, 2010 Decided: September 9, 2010
Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Daniel K. Dorsey, Washington, D.C., for Appellant. Robert
Albert Jamison Lang, Assistant United States Attorney, Winston-
Salem, North Carolina, Anna Mills Wagoner, United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bobby Joe Brown pled guilty to two counts of
carjacking and aiding and abetting such conduct, in violation of
18 U.S.C. §§ 2119(1), 2 (2006), and discharging a firearm
during and in relation to a crime of violence and aiding and
abetting such conduct, in violation of 18 U.S.C.
§§ 924(c)(1)(A)(iii), 2 (2006). Counsel filed a brief under
Anders v. California, 386 U.S. 738 (1967) certifying there are
no meritorious issues for appeal but raising for the court’s
consideration whether the district court complied with Rule 11
and whether the upward variance for Count One was reasonable.
Brown was given the opportunity to file a pro se supplemental
brief, but chose not to do so. The Government did not file a
brief. We affirm.
Because Brown did not move to withdraw his guilty plea
in the district court or raise any objections during the Rule 11
plea colloquy, the plea colloquy is reviewed for plain error.
United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002);
United States v. General, 278 F.3d 389, 393 (4th Cir. 2002). We
conclude the district court fully complied with the Rule 11
requirements in accepting Brown’s guilty plea. Brown stated
that he was not under the influence of alcohol or drugs, that he
reviewed his case and the charges against him with counsel, and
that he was satisfied with counsel’s services. The court
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explained the charges against Brown and advised him of the
penalties, the effect of supervised release, and the
applicability of the advisory Guidelines. Brown indicated he
understood the consequences of his guilty plea and the rights he
was giving up by entering the plea, including his right to a
jury trial and his rights at trial. Finally, the district court
ensured there was a factual basis underlying Brown’s plea and
that the plea was freely and voluntarily entered. Finding no
error with the Rule 11 hearing, we affirm the conviction.
This court reviews Brown’s sentence “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). In conducting this review, the
court “must first ensure that the district court committed no
significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) [(2006)] factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence[.]” Id. at 51. “When rendering a sentence, the
district court must make an individualized assessment based on
the facts presented,” applying the “relevant § 3553(a) factors
to the specific circumstances of the case before it.” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal
quotation marks omitted). The court must also “state in open
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court the particular reasons supporting its chosen sentence” and
“set forth enough to satisfy” this Court that it has “considered
the parties’ arguments and has a reasoned basis for exercising
[its] own legal decision making authority.” Id. (internal
quotation marks omitted).
An upward variance is procedurally sound if the
district court adequately explains the variance by reference to
the § 3553(a) sentencing factors. See United States v. Grubbs,
585 F.3d 793, 804-05 (4th Cir. 2009).
Once this court has determined that the sentence is
free of procedural error, it must consider the substantive
reasonableness of the sentence, “tak[ing] into account the
totality of the circumstances, including the extent of any
variance from the Guidelines range.” Gall, 552 U.S. at 51. If
the sentence is within the appropriate Guidelines range, this
court applies a presumption on appeal that the sentence is
reasonable. See United States v. Go, 517 F.3d 216, 218 (4th
Cir. 2008).
We find the reasons for the upward variance were
sufficiently explained by the district court. The court
referenced several facts regarding the incident that contributed
to the heinous nature of the offense but were not taken into
account by the Sentencing Guidelines. We also find, taking into
account the totality of the circumstances and the extent of the
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variance that the sentence for Count One was substantively
reasonable. Likewise, we find the sentences for Count Two and
Count Three were procedurally and substantively reasonable.
Accordingly, we affirm the sentence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Brown’s convictions and sentence. This
court requires that counsel inform Brown, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Brown 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 Brown. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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