                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4861


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TONY JOHNSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:12-cr-00019-FL-2)


Submitted:   July 12, 2013                 Decided:   July 24, 2013


Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Paul Camarena, NORTH & SEDGWICK, Chicago, Illinois, for
Appellant.    Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Tony       Johnson      appeals        his     conviction          and       105-month

sentence imposed following his guilty plea, pursuant to a plea

agreement, to two counts of possession with intent to distribute

a    quantity    of      cocaine        base,      in      violation          of       21    U.S.C.

§ 841(a)(1)      (2006).           Counsel      for      Johnson           filed   a     brief     in

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

certifying that there are no meritorious issues for appeal but

questioning whether the magistrate judge complied with Rule 11

in   accepting        Johnson’s         guilty      plea         and       whether       Johnson’s

sentence is reasonable.                 Johnson was given an opportunity to

file a pro se supplemental brief but has not done so.                                             The

Government      has    also    elected       not      to       file    a    brief.          For   the

reasons that follow, we affirm the district court’s judgment.

            We    first       address     the      validity           of    Johnson’s        guilty

plea.     Federal Rule of Criminal Procedure 11 requires that the

district    court,      prior      to    accepting         a    guilty       plea,     conduct      a

colloquy    in    which       it   informs        the      defendant         of    the      charges

against him and determines that he comprehends the nature of

those     charges,      any     mandatory         minimum         penalty,         the      maximum

possible penalty, and the rights he is relinquishing by pleading

guilty.     Fed. R. Crim. P. 11(b)(1).                     The court must also ensure

that the defendant’s guilty plea is voluntary and that there is

a factual basis for the plea.                   Fed. R. Crim. P. 11(b)(2), (3).

                                              2
Because Johnson did not move to withdraw his guilty plea in the

district court or raise any objections to the Rule 11 colloquy,

the colloquy is reviewed for plain error.                        United States v.

Martinez, 277 F.3d 517, 524-26 (4th Cir. 2002).                       To demonstrate

plain    error,    a   defendant      must    show:      (1)    there      was   error,

(2)   the   error      was   plain,    and     (3)    the    error     affected     his

“substantial rights.”          United States v. Olano, 507 U.S. 725,

732-34 (1993).         To establish that a Rule 11 error affected his

substantial       rights,    the   defendant         “must     show    a   reasonable

probability that, but for the error, he would not have entered

the plea.”      United States v. Dominguez Benitez, 542 U.S. 74, 83

(2004).

            Our review of the record reveals that the magistrate

judge substantially complied with Rule 11.                   The magistrate judge

properly ensured that Johnson’s plea was knowing, voluntary, and

supported by a sufficient factual basis.                     The magistrate judge

properly informed Johnson of the maximum possible penalties he

faced and of the advisory nature of the Sentencing Guidelines.

Though    the   magistrate    judge     did    not    inform    Johnson      that   any

false statements could be used against him in a prosecution for

perjury, Fed. R. Crim. P. 11(b)(1)(A), we conclude that this

error did not affect Johnson’s substantial rights because there

is no indication that Johnson lied or is being prosecuted for

perjury.    Olano, 507 U.S. at 732-34.               Moreover, Johnson fails to

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allege that but for this error he would not have entered the

plea.   Dominguez Benitez, 542 U.S. at 83.

            We     next       address      the       reasonableness         of   Johnson’s

sentence.     Applying an abuse of discretion standard, we first

review for significant procedural error, and in the absence of

such error, we then consider substantive reasonableness.                                   Gall

v. United States, 552 U.S. 38, 51 (2007).                              Procedural error

includes improperly calculating the Guidelines range, treating

the   Guidelines     range      as    mandatory,           failing    to    consider        the

§ 3553(a)     factors,        and     failing         to    adequately       explain        the

selected     sentence.              Id.         Substantive          reasonableness          is

determined    by    considering           the   totality      of     the   circumstances,

including the extent of any deviation from the Guidelines range.

Id.

            In sentencing Johnson, the district court imposed a

sentence    above    the      range       established        by     application       of    the

Sentencing Guidelines.              An upward variance is permitted where

justified    by    the    §    3553(a)      factors,        see    id.,    and   an   upward

departure    is    permitted        where       a    defendant’s      criminal        history

category     inadequately        reflects           his    actual    criminal     history.

United States v. Myers, 589 F.3d 117, 125-26 (4th Cir. 2009).

Where an upward departure is warranted, the sentencing court

must depart incrementally and explain the reasons supporting its

departure.       United States v. Dalton, 477 F.3d 195, 199 (4th Cir.

                                                4
2007).     This Court gives due deference to the district court’s

determination that the § 3553(a) factors justify the extent of a

variance, and the fact that we might find a different sentence

appropriate is insufficient to justify reversal of the district

court.   Gall, 552 U.S. at 51.

             We conclude that the sentence imposed by the district

court is both procedurally and substantively reasonable.                       The

district     court       properly    calculated      the    Guidelines     range,

considered the § 3553(a) factors, and adequately explained the

selected sentence.           Gall, 552 U.S. at 51.         The court explained

that   the   §     3553(a)    factors   and    the   inadequacy    of   Johnson’s

criminal     history         category   justified      deviation        from   the

Guidelines.        Id.; Myers, 589 F.3d at 125-26.               The court then

properly departed upward incrementally and explained the reasons

supporting the departure, including Johnson’s criminal history,

the need to protect the public, and the need to provide adequate

deterrence.        Dalton, 477 F.3d at 199.          Finally, considering the

totality     of    the   circumstances,       including    the   extent   of   the

deviation     as    well     as   Johnson’s    unscored    prior   felony      drug

convictions and his propensity to reoffend, a 105-month sentence

was not an abuse of discretion.           Gall, 552 U.S. at 51.

             We also conclude that the district court did not err

in imposing a $1,000 fine due immediately.                  Before imposing a

fine, the district court must consider specific factors and make

                                         5
specific findings regarding the defendant’s ability to pay.                             18

U.S.C. § 3572 (2006); USSG § 5E1.2; United States v. Walker, 39

F.3d 489, 492 (4th Cir. 1994).                     However, in United States v.

Taylor, 984 F.2d 618, 621-22 (4th Cir. 1993), we upheld a fine

imposed    without      specific   findings          where       the    fine   was    only

$2,000, the defendant could make payments on the fine through

income earned in prison, the findings in the presentence report

adequately      supported   the    fine,       and       the    defendant      failed    to

object to the fine at sentencing.                        A defendant’s failure to

object    to    the   calculation     of       a    fine       at   sentencing       waives

appellate review absent plain error.                     United States v. Castner,

50 F.3d 1267, 1277 (4th Cir. 1995); see Olano, 507 U.S. at 732.

            Here,     the   district    court            did    not    plainly   err    in

calculating a $1,000 fine due immediately.                      Though the court did

not explicitly articulate its consideration of the appropriate

factors, it did find that Johnson was unable to pay a within-

Guidelines fine and accordingly departed downward from $5,000 to

$1,000.    Taylor, 984 F.2d at 621-22.                    Moreover, the fine does

not contradict the presentence report, which opined that Johnson

could afford a $1,000 fine paid in installments using income

earned in prison and while on supervised release.                              Id.    Even

though    the   court    made   the   fine         due    immediately      despite      the

presentence report’s indication that Johnson could not presently

afford to pay, the court waived any interest.                         Accordingly, even

                                           6
assuming an error and that that error was plain, Johnson shows

no effect on his substantial rights.                         Olano, 507 U.S. at 732;

see also McGhee v. Clark, 166 F.3d 884, 886 (7th Cir. 1999)

(“[Immediate       payment]      directives       generally         are   interpreted      to

require not immediate payment in full but payment to the extent

that   the     defendant      can    make        it    in     good    faith,       beginning

immediately.”) (internal quotation marks and citations omitted).

             In accordance with Anders, we have reviewed the entire

record in this case and find no meritorious issues for appeal.

We   therefore     affirm     the    district         court’s       judgment.       We    deny

counsel’s motion to withdraw from representation.                               This court

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

to petition the Supreme Court of the United States for further

review.       If   Johnson       requests    that       a    petition     be    filed,     but

counsel believes that such a petition would be frivolous, then

counsel      may   move     this     court       for        leave    to     withdraw      from

representation.        Counsel’s motion must state that a copy thereof

was served on Johnson.              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



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