Opinion
22-4412
02-23-2023
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DANZAVIOUS DOLPHUS, a/k/a Dash, Defendant-Appellant.
Brian J. Kornbrath, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia, for Appellant. Zelda Elizabeth Wesley, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.
UNPUBLISHED
Submitted: February 21, 2023
Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, Senior District Judge. (1:17-cr-00068-IMK-MJA-1)
ON BRIEF:
Brian J. Kornbrath, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia, for Appellant.
Zelda Elizabeth Wesley, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.
Before NIEMEYER and DIAZ, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM
Danzavious Dolphus pled guilty, pursuant to a written plea agreement, to distribution of heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). The district court sentenced Dolphus to 84 months' imprisonment, a sentence at the low end of the advisory Sentencing Guidelines range. On appeal, Dolphus' counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious grounds for appeal but questioning whether the district court erred in accepting Dolphus' guilty plea and whether Dolphus' sentence is reasonable. Dolphus was informed of his right to file a pro se supplemental brief, but he has not done so. The Government declined to file a responsive brief. We affirm.
Prior to accepting a guilty plea, the district court, through a colloquy with the defendant, must inform the defendant of, and determine that the defendant understands, the charge to which the plea is offered, any mandatory minimum penalty, the maximum possible penalty he faces upon conviction, and the various rights he is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b). The district court also must ensure that the defendant's plea was voluntary, was supported by a sufficient factual basis, and did not result from force or threats, or promises not contained in the plea agreement. Fed. R. Crim. P. 11(b)(2), (3). In reviewing the adequacy of the court's compliance with Rule 11, we "accord deference to the trial court's decision as to how best to conduct the mandated colloquy with the defendant." United States v. Moussaoui, 591 F.3d 263, 295 (4th Cir. 2010) (internal quotation marks omitted).
Because Dolphus did not move in the district court to withdraw his guilty plea, we review the validity of his guilty plea for plain error. United States v. Williams, 811 F.3d 621, 622 (4th Cir. 2016). To establish plain error, Dolphus must establish that "(1) an error was made; (2) the error is plain; (3) the error affects substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Harris, 890 F.3d 480, 491 (4th Cir. 2018) (internal quotation marks omitted). In the guilty plea context, a defendant meets his burden to establish that a plain error affected his substantial rights by showing a reasonable probability that he would not have pled guilty but for the district court's Rule 11 omissions. United States v. Sanya, 774 F.3d 812, 815-16 (4th Cir. 2014). We have reviewed the Rule 11 colloquy and, discerning no plain error, we conclude that Dolphus' guilty plea is valid.
"We review the reasonableness of a sentence under 18 U.S.C. § 3553(a) using an abuse-of-discretion standard, regardless of 'whether [the sentence is] inside, just outside, or significantly outside the [Sentencing] Guidelines range.'" United States v. Nance, 957 F.3d 204, 212 (4th Cir. 2020) (first alteration in original) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). In performing that review, we must first determine whether the district court "committed any procedural error, such as improperly calculating the Guidelines range, failing to consider the § 3553(a) factors, or failing to adequately explain the chosen sentence." Id. If "the district court has not committed procedural error," we then assess the substantive reasonableness of the sentence. Id. Our substantive reasonableness review "takes into account the totality of the circumstances to determine whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a)." Id. (internal quotation marks omitted). "Any sentence that is within or below a properly calculated Guidelines range is presumptively [substantively] reasonable. Such a presumption can only be rebutted by showing that the sentence is unreasonable when measured against the . . . § 3553(a) factors." United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014) (citation omitted).
We are satisfied that Dolphus' sentence of imprisonment is procedurally reasonable. The district court correctly calculated the Guidelines range, adequately considered the § 3553(a) factors, provided a meaningful explanation for the sentence that it chose, and sufficiently addressed defense counsel's mitigation arguments. See Gall, 552 U.S. at 4951. We also conclude that nothing in the record rebuts the presumption of substantive reasonableness afforded to Dolphus' 84-month sentence.
In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious grounds for appeal. We thus affirm the district court's judgment. This court requires that counsel inform Dolphus, in writing, of the right to petition the Supreme Court of the United States for further review. If Dolphus 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 Dolphus.
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