                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4805


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          and

ROY NELSON PATTON,    SR.;   JOHN   WILSON   PATTON;    BARBARA   ANN
PATTON LEONARD,

                Claimants,

          v.

ASHTON DURRELL FARLEY,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:08-cr-00128-LHT-8)


Submitted:   July 29, 2010                   Decided:    August 23, 2010


Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Leslie Carter Rawls, Washington, D.C., for Appellant.   Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Ashton       Durrell    Farley     timely    appeals       the     120-month

sentence     imposed        following    his   guilty     plea,    pursuant          to    a

written plea agreement, to one count of conspiracy to distribute

fifty grams or more of cocaine base, in violation of 21 U.S.C.

§§    841(a)(1),      846    (2006).      Farley’s      counsel        filed    a    brief

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

that    there      are      no   meritorious      grounds        for     appeal,          but

questioning whether: (1) Farley’s guilty plea was knowing and

voluntary,      (2)      Farley’s       appellate       waiver     is        valid        and

enforceable, and (3) Farley’s sentence is in accordance with law

and    constitutional        requirements.       Farley     was    advised          of    his

right to file a pro se brief, but has not done so.                           Finding no

reversible error, we affirm.

            Prior to accepting a defendant’s guilty plea, Federal

Rule of Criminal Procedure 11 requires the district court to

address the defendant in open court and ensure he understands,

among other things, the nature of the charge against him, the

possible punishments he faces, and the rights he relinquishes by

pleading guilty.         Fed. R. Crim. P. 11(b)(1).           Because Farley 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, 524-27 (4th Cir. 2002); United States v. General, 278 F.3d

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389,    393    (4th       Cir.    2002).            To    demonstrate          plain       error,      a

defendant must show that: (1) there was an error; (2) the error

was plain; and (3) the error affected his “substantial rights.”

United States v. Olano, 507 U.S. 725, 732 (1993).                                   A defendant’s

substantial rights are affected if we determine that the error

“influenced         the    defendant’s              decision         to     plead     guilty         and

impaired      his    ability       to    evaluate             with    eyes    open        the   direct

attendant risks of accepting criminal responsibility.”                                          United

States v. Goins, 51 F.3d 400, 402-03 (4th Cir. 1995) (internal

quotation marks omitted); see also Martinez, 277 F.3d at 532

(holding that a defendant must demonstrate that he would not

have pled guilty but for the error).

              Neither counsel nor Farley identify any errors in the

plea    colloquy      or        assert    that          any    error       influenced       Farley’s

decision to plead guilty.                  Additionally, our review of the plea

hearing      transcript          reveals       no       deficiencies         in     the    colloquy.

Therefore, we find that Farley’s guilty plea was knowing and

voluntary.

              Counsel       also     requests             this       court    to     examine         the

validity of Farley’s appellate waiver.                               However, any challenge

to     the    enforceability         of        the       waiver       is     moot    because         the

Government      has       not    filed     a    motion         to     dismiss       based       on   the

appellate      waiver,      and     we     decline            to   sua     sponte     enforce        the



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waiver.     See United States v. Blick, 408 F.3d 162, 168 (4th Cir.

2005).

            Counsel     also      questions    whether    Farley’s    sentence

violates the law or his constitutional rights.                Because Farley

did not raise any claim of error related to his sentence in the

district court, we review for plain error.                  United States v.

Lynn, 592 F.3d 572, 577 (4th Cir. 2010).

            In reviewing a sentence, we must first ensure that the

district    court     did   not    commit     any   “significant     procedural

error,” such as failing to properly calculate the applicable

range found in the U.S. Sentencing Guidelines Manual, failing to

consider the 18 U.S.C. § 3553(a) (2006) factors, or failing to

adequately explain the sentence.               Gall v. United States, 552

U.S. 38, 51 (2007).            The district court is not required to

“robotically tick through § 3553(a)’s every subsection.”                United

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

the district court must “place on the record an individualized

assessment based on the particular facts of the case before it.

This individualized assessment need not be elaborate or lengthy,

but it must provide a rationale tailored to the particular case

at hand and adequate to permit meaningful appellate review.”

United States v. Carter, 564 F.3d, 325, 330 (4th Cir. 2009)

(internal    quotation      marks,    footnote,     and   citation   omitted).



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This is true even when the district court sentences a defendant

within the applicable Guidelines range.              Id.

             Counsel     first     calls     to   our      attention     certain

requirements of Federal Rule of Criminal Procedure 32 (“Rule

32”) relating to the Presentence Investigation Report (“PSR”)

and sentencing.        However, our review of the record reveals that

the district court fully complied with Rule 32.

             Additionally, the district court, taking into account

the   statutory     mandatory    minimum     sentence,     properly   calculated

Farley’s      applicable       Guidelines     sentence       of   120   months’

imprisonment, using the appropriate version of the Guidelines.

While the district court failed to discuss the § 3553(a) factors

or conduct an individualized assessment as required by Carter,

we conclude that, in light of the district court’s imposition of

a sentence at the statutory mandatory minimum, that failure did

not affect Farley’s substantial rights under plain error review.

Because the Government did not move to allow the district court

to impose a sentence below the statutory mandatory minimum, the

district court had no authority to depart below the sentence it

imposed.      18 U.S.C. § 3553(e); Melendez v. United States, 518

U.S. 120, 125-26 (1996).

             Once we have determined there is no procedural error,

we    must   then   consider     the   substantive    reasonableness     of   the

sentence, taking into account the totality of the circumstances.

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Gall, 552 U.S. at 51.       If the sentence imposed is within the

appropriate   Guidelines   range,   on     appeal   it   is   presumptively

reasonable.      United States v. Go, 517 F.3d 216, 218 (4th Cir.

2008).   The presumption may be rebutted by a showing “that the

sentence is unreasonable when measured against the § 3553(a)

factors.”     United States v. Montes-Pineda, 445 F.3d 375, 379

(4th Cir. 2006) (internal quotation marks omitted).

            Because the district court imposed a within-Guidelines

sentence, it is presumptively reasonable on appeal.               Farley has

not rebutted that presumption.          Accordingly, the district court

committed   no   significant   procedural     or    substantive    error   in

sentencing Farley to 120 months’ imprisonment.

            In accordance with Anders, we have examined the entire

record and find no meritorious issues for appeal.             We therefore

affirm the district court’s judgment.              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




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