United States v. Lattaker

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 14, 2009
• Docket: 08-4631
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4631

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHN LYNN LATTAKER, a/k/a Edward Miller,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:07-cr-00094-RJC-1)

Submitted: December 23, 2008 Decided: January 14, 2009

Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mark P. Foster, Jr., LAW OFFICES OF MARK FOSTER, PC, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

John Lynn Lattaker pled guilty pursuant to a plea

agreement to two counts of robbery affecting interstate

commerce, in violation of 18 U.S.C. § 1951 (2006), one count of

brandishing a firearm during a crime of violence, in violation

of 18 U.S.C. § 924(c) (2006), and one count of possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)

(2006). As part of the plea agreement, Lattaker waived his

right to challenge his conviction and sentence on direct appeal,

except for claims of prosecutorial misconduct or ineffective

assistance of counsel. The district court sentenced Lattaker to

360 months’ imprisonment. Lattaker’s counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating

that there are no meritorious issues for appeal. Lattaker filed

a pro se supplemental brief raising several issues. The

Government does not seek to enforce the plea agreement’s appeal

waiver. ∗ Finding no error, we affirm.

∗ Because the Government has not sought to enforce Lattaker’s appellate waiver, we need not consider whether the waiver is dispositive of this appeal. See United States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000) (declining to consider an appeal waiver that arguably barred the appeal on one issue because the Government had expressly elected not to argue waiver with regard to that issue); cf. United States v. Blick, 408 F.3d 162, 168-69 (4th Cir. 2005) (enforcing a plea agreement’s appeal waiver where the Government sought enforcement, the issues raised fell within the waiver’s scope, (Continued) 2 In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

review. Our review of the transcript of the plea hearing leads

us to conclude that the district court substantially complied

with the mandates of Fed. R. Crim. P. 11 in accepting Lattaker’s

guilty plea and that the court’s omissions did not affect

Lattaker’s substantial rights. Critically, the transcript

reveals that the district court ensured the plea was supported

by an independent factual basis and that Lattaker entered the

plea knowingly and voluntarily with an understanding of the

consequences. See United States v. DeFusco, 949 F.2d 114, 116,

119-20 (4th Cir. 1991).

Turning to Lattaker’s sentence, we review a criminal

sentence for reasonableness, applying an abuse of discretion

standard. Gall v. United States, 128 S. Ct. 586, 594-97 (2007);

United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008). We must

first determine whether the district court committed any

“significant procedural error.” Gall, 128 S. Ct. at 597. We

then consider the substantive reasonableness of the sentence,

and may apply a presumption of reasonableness to a sentence

within the Guidelines range. Go, 517 F.3d at 218. We find that

and no claim was present that the Government breached its obligations under the plea agreement).

3 the district court’s imposition of a 360-month sentence, a

sentence within the properly calculated Guidelines range, was

reasonable. We find further that none of the issues in

Lattaker’s pro se supplemental brief raise meritorious issues

for appeal.

We therefore affirm the district court’s judgment.

This court requires counsel to inform his client, in writing, of

his right to petition the Supreme Court of the United States for

further review. If the client requests that a petition be

filed, but counsel believes that such a petition would be

frivolous, counsel may move in this court for leave to withdraw

from representation. Counsel’s motion must state that a copy of

the motion was served on the client. 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