                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-5117


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SHANEKA PENIX, a/k/a Tweet,

                Defendant - Appellant.



                              No. 09-4330


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KEVIN GARY, a/k/a Kayo, a/k/a Red Eyes, a/k/a Human Torch,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of Maryland, at Baltimore.   William D. Quarles, Jr., District
Judge. (1:08-cr-00086-WDQ-13; 1:08-cr-00086-WDQ-3)


Submitted:   November 29, 2010              Decided:   December 29, 2010


Before MOTZ, SHEDD, and DAVIS, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.


Richard C. Bittner, LAW OFFICES OF RICHARD C. BITTNER, Glen
Burnie, Maryland; Timothy J. Sullivan, BRENNAN, SULLIVAN &
MCKENNA, LLC, Greenbelt, Maryland, for Appellants.     Rod J.
Rosenstein, United States Attorney, Christopher M. Mason,
Special Assistant United States Attorney, Baltimore, Maryland,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

               Pursuant to plea agreements, Shaneka Penix and Kevin

Gary pled guilty to conspiracy to participate in a racketeering

enterprise, in violation of 18 U.S.C. § 1962(d) (2006).                                      Penix

also pled guilty to conspiracy to distribute and possess with

intent to distribute fifty grams or more of cocaine base, in

violation of 21 U.S.C. §§ 841(a)(1), 846 (2006).                                  The district

court     sentenced       Penix      to    the        statutorily          mandated      minimum

sentence       of   120    months         for        her   involvement           in    the     drug

conspiracy, with a concurrent 120-month sentence imposed for her

involvement in the racketeering conspiracy.                           The court sentenced

Gary    to    360   months,     as    stipulated           in   the       Fed.    R.    Crim.    P.

11(c)(1)(C) provision of his plea agreement.

               On   appeal,     counsel          have       filed     a    joint       brief     in

accordance      with      Anders     v.    California,          386       U.S.    738    (1967),

stating that, in their view, there are no meritorious issues for

appeal.       Counsel question, however, whether the district court

erred in finding Penix ineligible for sentencing consideration

under the safety valve provisions of 18 U.S.C. § 3553(f) (2006),

and whether the district court complied with Fed. R. Crim. P. 11

in accepting Gary’s guilty plea.                           The Government declined to

file a brief and does not seek to enforce the waiver of appeal

rights       contained     in   the       plea       agreements.            Appellants         were



                                                 3
notified of their opportunity to file pro se supplemental briefs

but have not done so.

            Because neither Penix nor Gary moved in the district

court to withdraw their guilty pleas, the Rule 11 hearings are

reviewed for plain error.               United States v. Martinez, 277 F.3d

517, 525 (4th Cir. 2002).              To establish plain error, Appellants

“must show:       (1) an error was made; (2) the error is plain; and

(3) the error affects substantial rights.”                         United States v.

Massenburg,      564    F.3d    337,    342-46    (4th     Cir.    2009)      (reviewing

unpreserved Rule 11 error).              “The decision to correct the error

lies within our discretion, and we exercise that discretion only

if the error seriously affects the fairness, integrity or public

reputation       of   judicial     proceedings.”           Id.    at    343   (internal

quotation    marks      and    citations       omitted).         Our    review   of    the

record reveals no Rule 11 error.                   The court ensured that the

guilty    pleas       were    knowing     and    voluntary        and    supported     by

adequate factual bases.            United States v. DeFusco, 949 F.2d 114,

116, 119-20 (4th Cir. 1991).               Therefore, we affirm Appellants’

convictions.

            We conclude that we do not have jurisdiction to review

Gary’s sentence.             The statute governing appellate review of a

sentence, 18 U.S.C. § 3742(c) (2006), limits the circumstances

under    which    a    defendant    may    appeal    a     sentence      to    which   he

stipulated in a Rule 11(c)(1)(C) plea agreement to claims that

                                           4
“his sentence was imposed in violation of law [or] was imposed

as   a   result     of    an    incorrect       application   of   the   sentencing

guidelines[.]”           United States v. Sanchez, 146 F.3d 796, 797 &

n.1 (10th Cir. 1998); United States v. Littlefield, 105 F.3d

527, 527-28 (9th Cir. 1997).

               Gary’s sentence was not imposed in violation of law

and did not result from an error in applying the guidelines.

See United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir.

2005)     (stating       that     “[a]    sentence       imposed   under     a    Rule

11(c)(1)(C) plea arises directly from the agreement itself, not

from the Guidelines”); Littlefield, 105 F.3d at 528.                     Because we

are barred from reviewing Gary’s sentence imposed pursuant to

his Rule 11(c)(1)(C) plea agreement under 18 U.S.C. § 3742(c)

(2006),    and    none     of    the   exceptions    apply,   we   dismiss       Gary’s

appeal of his sentence.

               We review Penix’s sentence under a deferential abuse-

of-discretion standard.            See Gall v. United States, 552 U.S. 38,

51 (2007).       The first step in this review requires us to “ensure

that     the    district       court   committed    no    significant    procedural

error, such as . . . improperly calculating . . . the Guidelines

range.”        United States v. Osborne, 514 F.3d 377, 387 (4th Cir.)

(internal quotation marks, citations and alterations omitted),

cert. denied, 128 S. Ct. 2525 (2008).                      We then consider the



                                            5
substantive reasonableness of the sentence, taking into account

the totality of the circumstances.                      Gall, 552 U.S. at 51.

            As a result of her guilty plea to an offense that

involved fifty grams or more of cocaine base, Penix was subject

to a statutorily mandated minimum term of imprisonment of ten

years.     Under current jurisprudence, the district court had no

discretion        to     sentence        Penix        below     the    statutory       minimum.

United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005).

We     conclude        that    the    district         court     did     not    err    in     its

determination that Penix was not eligible for the “safety valve”

provision to reduce her sentence, as Penix’s criminal history

points    were     properly          calculated        under     USSG    § 4A1.1(c),         (d).

Consequently,          we     conclude     that       Penix’s    120-month      imprisonment

term was reasonable and affirm her sentence.

            In accordance with Anders, we have reviewed the record

in these cases and have found no meritorious issues for appeal.

We   therefore         affirm     Penix’s        and     Gary’s       convictions,      affirm

Penix’s sentence, and dismiss Gary’s appeal of his sentence.

This    court     requires        that     counsel       inform       Penix    and    Gary,   in

writing,    of     the      right     to   petition       the     Supreme      Court    of    the

United States for further review.                         If either 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

                                                  6
state that copies thereof were served on Penix and Gary.             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 IN PART;
                                                    DISMISSED IN PART




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