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1) Michael Barrett pled guilty to possession of a firearm by a convicted felon and was sentenced to 220 months in prison. 2) Barrett's counsel filed an Anders brief stating there are no meritorious issues for appeal but questioning the reasonableness of the sentence. 3) The Court of Appeals affirmed the district court's judgment, finding no procedural or substantive errors in Barrett's plea or sentencing and no grounds to consider his ineffective assistance of counsel claim on direct appeal.

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47 views5 pages

Unpublished

1) Michael Barrett pled guilty to possession of a firearm by a convicted felon and was sentenced to 220 months in prison. 2) Barrett's counsel filed an Anders brief stating there are no meritorious issues for appeal but questioning the reasonableness of the sentence. 3) The Court of Appeals affirmed the district court's judgment, finding no procedural or substantive errors in Barrett's plea or sentencing and no grounds to consider his ineffective assistance of counsel claim on direct appeal.

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© Public Domain
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UNPUBLISHED

UNITED STATES COURT OF APPEALS


FOR THE FOURTH CIRCUIT

No. 09-4600

UNITED STATES OF AMERICA,


Plaintiff Appellee,
v.
MICHAEL ANTHONY BARRETT, JR.,
Defendant Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00398-JAB-1)

Submitted:

January 25, 2010

Decided:

February 12, 2010

Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, William C. Ingram,


First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant.
Graham Tod Green, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Michael Anthony Barrett, Jr., pled guilty to one count
of possession of a firearm by a convicted felon, in violation of
18 U.S.C. 922(g)(1), 924(e) (2006).

He was found to be an

armed career criminal under the Armed Career Criminal Act, 18


U.S.C. 924(e), and U.S. Sentencing Guidelines Manual 4B1.4
(2008), and was sentenced to 220 months imprisonment.
appeals.

Counsel

California,

386

has

U.S.

filed

738

brief

(1967),

pursuant

stating

that

to

He now

Anders

there

are

v.
no

meritorious issues for appeal, but questioning whether Barretts


sentence is reasonable.

Barrett has filed a pro se supplemental

brief in which he asserts that his guilty plea was not knowingly
and

voluntarily

made,

that

the

district

court

committed

procedural error in imposing his sentence, and that his counsel


rendered ineffective assistance.

We affirm.

Because Barrett did not move in the district court to


withdraw his guilty plea, his challenge to the adequacy of the
Fed. R. Crim. P. 11 hearing is reviewed for plain error.

See

United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).
Our review of the transcript of the plea hearing leads us to
conclude that the district court substantially complied with the
mandates of Rule 11 in accepting Barretts guilty plea and that
the

courts

rights.

omissions

did

not

affect

Barretts

substantial

Critically, the transcript reveals that the district


2

court ensured the plea was supported by an independent factual


basis

and

that

voluntarily

with

United

States

Barrett
an

entered

the

understanding

v.

DeFusco,

of

949

plea

the

knowingly

and

consequences.

F.2d

114,

116,

See
119-20

(4th Cir. 1991).


Turning
reasonableness,

to

Barretts

applying

sentence,

an

we

review

abuse-of-discretion

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

it

for

standard.

In conducting

this review, we must first examine the sentence for significant


procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory,
[(2006)]

failing
factors,

to

consider

selecting

the

[18

sentence

U.S.C.]
based

3553(a)

on

clearly

erroneous facts, or failing to adequately explain the chosen


Id. at 51.

sentence.

When rendering a sentence, the district

court must make an individualized assessment based on the facts


presented,

applying

the

relevant

3553(a)

specific circumstances of the case before it.

factors

to

the

United States v.

Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation
marks
state

and
in

emphasis
open

omitted).

court

the

The

district

particular

court

reasons

must

also

supporting

its

chosen sentence and set forth enough to satisfy this court


that

it

reasoned

has
basis

considered
for

the

exercising

parties
[its]
3

own

arguments
legal

and

has

decisionmaking

authority.

Id.

(internal

quotation

marks

omitted).

The

district court, however, is not required to robotically tick


through

3553(a)s

every

subsection.

United

States

v.

Johnson, 445 F.3d 339, 345 (4th Cir. 2006).


If the sentence is free of procedural error, we then
consider the substantive reasonableness of the sentence, taking
into account the totality of the circumstances.
at 51.
range,

Gall, 552 U.S.

If the sentence is within the appropriate Guidelines


this

court

applies

sentence is reasonable.

presumption

on

appeal

that

the

See United States v. Go, 517 F.3d 216,

218 (4th Cir. 2008).


We conclude that the district court did not commit
procedural

or

substantive

error

in

sentencing

Barrett.

The

district court properly calculated and treated as advisory the


Guidelines imprisonment range of 188 to 235 months.

The court

heard argument from the parties on the appropriate sentence and


gave Barrett an opportunity to allocute.

The court considered

the relevant 3553(a) factors, addressing on the record the


nature and circumstances of the offense, Barretts history and
characteristics, and the need for the sentence to protect the
public.

Further, neither counsel nor Barrett offers any grounds

to rebut the presumption on appeal that the within-Guidelines


sentence of 220 months imprisonment is reasonable.

Finally,
ineffective

Barretts

assistance

post-conviction

is

claim

more

proceeding

that

counsel

appropriately

brought

rendered

considered

pursuant

to

28

in

U.S.C.A.

2255 (West Supp. 2009), unless counsels alleged deficiencies


conclusively

appear

on

the

record.

See

United

Richardson, 195 F.3d 192, 198 (4th Cir. 1999).


no

conclusive

evidence

on

the

record

that

States

v.

Because we find
counsel

rendered

ineffective assistance, we decline to consider this claim on


direct appeal.
As required by Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal.
therefore

affirm

the

district

courts

judgment.

This

We

court

requires that counsel inform Barrett, in writing, of the right


to petition the Supreme Court of the United States for further
review.

If

Barrett

requests

that

petition

be

filed,

but

counsel believes that such a petition would be frivolous, then


counsel

may

move

representation.

in

this

court

for

leave

to

withdraw

from

Counsels motion must state that a copy thereof

was served on Barrett.


We dispense with oral argument because the facts and
legal
before

contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED
5

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