                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 17-4314


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

JAMELL LAMON CURETON, a/k/a Assassin,

                     Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Max O. Cogburn, Jr., District Judge. (3:14-cr-00229-MOC-1)


Submitted: January 26, 2018                                   Decided: February 12, 2018


Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.


Affirmed in part, dismissed in part by unpublished per curiam opinion.


Robert L. McClellan, IVEY, MCCLELLAN, GATTON & SIEGMUND, LLP,
Greensboro, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       In accordance with a written plea agreement, Jamell Lamon Cureton pled guilty to:

RICO conspiracy, 18 U.S.C. § 1962(d) (2012) (Count One); 1 three counts of murder in aid

of racketeering, 18 U.S.C. § 1959(a)(1) (2012) (Counts Two, Seven, and Nine), three

counts of using or carrying a firearm during and in relation to a crime of violence and

possession of a firearm in furtherance of a crime of violence resulting in death, 18 U.S.C.

§§ 924(c), 924(j)(1) (2012) (Counts Three, Eight, Ten); Hobbs Act robbery, 18 U.S.C.

§ 1951 (2012) (Count Four); assault with a dangerous weapon in aid of racketeering, 18

U.S.C. § 1959(a)(3) (2012) (Count Five); and using or carrying a firearm in relation to a

crime of violence and possession of a firearm in furtherance of a crime of violence, 18

U.S.C. § 924(c) (Count Six). Cureton was sentenced to life in prison on Counts One, Two,

Seven and Nine and to 240 months on Counts Four and Five, to run concurrently. He was

sentenced to life in prison on the remaining counts, to run consecutively to each other and

to the concurrent sentence.

       Cureton appeals. His attorney has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), raising three issues but stating that there are no meritorious issues for

appeal. Cureton was advised of his right to file a pro se supplemental brief but has not

filed such a brief. We affirm in part and dismiss in part.




       1
           The counts were charged in a third superseding indictment.

                                              2
                                              I

       Cureton first claims that the district court did not comply with Fed. R. Crim. P. 11.

At the Rule 11 hearing, Cureton informed the court that he was not under the influence of

alcohol or drugs of any kind. His mind was clear. He understood the nature of the

proceeding. Cureton admitted that he was guilty of the offenses and that his plea was not

the result of threats, force, intimidation or promises other than those contained in the plea

agreement, which he had read, discussed with counsel, and understood. He expressed

satisfaction with his attorney’s services.

       Cureton stated that both the Factual Basis and the Government’s summary of the

plea agreement were accurate. Our review of the Rule 11 transcript discloses substantial

compliance with Rule 11. Although the district court did not mention its obligation to

impose a special assessment, see Fed. R. Crim. P. 11(b)(1)(L), Cureton did not move to

withdraw his guilty plea because of this omission. Accordingly, our review is for plain

error. See United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Because there is

no chance that, but for this error, Cureton would have gone to trial and faced the possibility

of multiple death sentences, the error was not plain.

       We conclude that the record fully supports the district court’s determination that the

plea was knowingly and voluntarily entered and that a factual basis for the plea existed.

We therefore affirm the convictions.

                                              II

       Cureton also contends that his sentence was unreasonable. Pursuant to Fed. R.

Crim. P. 11(c)(1)(C), the plea agreement specified that, as to Counts One-Three and

                                              3
Six-Ten, Cureton would receive a sentence of life in prison. “Where a defendant agrees to

and receives a specific sentence [pursuant to a Rule 11(c)(1)(C) agreement], he may appeal

the sentence only if it was (1) imposed in violation of the law, (2) imposed as a result of an

incorrect application of the Guidelines, or (3) is greater than the sentence set forth in the

plea agreement.”     United States v. Calderon, 428 F.3d 928, 932 (10th Cir. 2005).

“Otherwise, the [c]ourt lacks jurisdiction over the appeal.” Id.

       With respect to the life sentences on Counts One-Three and Six-Ten, Cureton

satisfies none of the exceptions. First, the sentences were not imposed in violation of law,

as he was sentenced within the maximum for each offense. Nor are the sentences the result

of an incorrect application of the Guidelines; indeed, a Rule 11(c)(1)(C) sentence is

predicated on “the agreement itself, not on the judge’s calculation of the Sentencing

Guidelines[,]” Freeman v. United States, 564 U.S. 522, 534 (2011) (Sotomayor, J.,

concurring), except when the agreement “expressly uses a Guidelines sentencing range to

establish the term of imprisonment.” Id. at 539; see also United States v. Brown, 653 F.3d

337, 339-40 (4th Cir. 2011) (applying Freeman). This is not the case here, where the

stipulated term of imprisonment (life on each count) was not based on Cureton’s Guidelines

range. 2 Finally, he received exactly the sentence—life—set forth in the plea agreement.

Because none of the exceptions applies with respect to the eight counts, we are without




       2
         The plea agreement stated, “Pursuant to Fed. R. Crim. P. 11(c)(1)(C), the parties
agree that the defendant will be sentenced to a term of life imprisonment without the
possibility of parole for Counts One, Two, Three, Six, Seven, Eight, Nine, and Ten.”

                                              4
jurisdiction to review Cureton’s sentence on those counts. Accordingly, we dismiss the

appeal of this portion of the sentence.

       The plea agreement is silent as to the sentence on Counts Four and Five.

Accordingly, appellate review of Cureton’s sentence on these counts is not waived, and

our analysis proceeds under the framework of Gall v. United States, 552 U.S. 38 (2007).

       “[A]ny sentence, within or outside of the Guidelines range, as a result of a departure

or a variance, must be reviewed by appellate courts for reasonableness pursuant to an abuse

of discretion standard.” United States v. Diosdado-Star, 630 F.3d 359, 365 (4th Cir. 2010);

see also Gall, 552 U.S. at 51; Rita v. United States, 551 U.S. 338, 350 (2007). This review

requires consideration of both the procedural and substantive reasonableness of the

sentence. Id.; see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). This court first

decides whether the district court correctly calculated the defendant’s advisory Guidelines

range, considered the § 3553(a) factors, analyzed the arguments presented by the parties,

and sufficiently explained the selected sentence. Id. at 575-76; see United States v. Carter,

564 F.3d 325, 330 (4th Cir. 2009).

       With respect to the explanation of the sentence, “[r]egardless of whether the district

court imposes an above, below, or within-Guidelines sentence, it must place on the record

an individualized assessment based on the particular facts of the case before it.” Id.

(internal quotation marks omitted); see Gall, 552 U.S. at 50. While the “individualized

assessment need not be elaborate or lengthy, . . . it must provide a rationale tailored to the

particular case and [be] adequate to permit meaningful appellate review.” Carter, 564 F.3d

at 330 (internal quotation marks omitted).

                                              5
       If we conclude that a sentence is free of significant procedural error, we then

consider the substantive reasonableness of the sentence.          Lynn, 592 F.3d at 575.

“Substantive reasonableness examines the totality of the circumstances to see whether the

sentencing court abused its discretion in concluding that the sentence it chose satisfied the

standards set forth in § 3553(a).” United States v. Mendoza-Mendoza, 597 F.3d 212, 216

(4th Cir. 2012).

       A sentence within the correctly calculated Guidelines range is presumptively

reasonable. United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). The burden rests

with the defendant to rebut the presumption by demonstrating “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).

       We conclude that the sentence on Counts Four and Five was procedurally and

substantively reasonable. Cureton was sentenced within his Guidelines range of twenty

years on each count. The court considered the arguments of counsel and the statutory

sentencing factors and provided a sufficiently individualized explanation of the chosen

sentence. 3 Cureton did not meet his burden of demonstrating that the presumptively




       3
           In imposing sentence, the court noted that this was a “very, very serious matter.”
The court commented that two of the murders with which Cureton was directly involved
were carried out in an effort to prevent the victims from testifying against him at a state
trial for robbery and other offenses; it was this robbery that gave rise to the charges in
Counts Four and Five. The court stated that it had considered the § 3553(a) factors and
that the sentence was necessary “to promote respect for the law, provide just punishment .
. . , protect the public . . . , and [to deter others].”

                                             6
reasonable, within-Guidelines sentence is unreasonable when measured against the

statutory sentencing factors.

                                                 III

       While awaiting trial, the Attorney General imposed Special Administrative

Measures (SAMs), highly restrictive and extensive conditions of confinement, on Cureton

because of a substantial risk that his communications or contacts with persons could result

in death or serious bodily injury to others. The district court denied Cureton’s motion to

modify or remove the SAMs. On appeal, Cureton questions whether the district court erred

in denying the motion.

       In United States v. Abu Ali, 528 F.3d 210 (4th Cir. 2008), the defendant argued that

the SAMs imposed on him constituted an improper additional sentence. We determined

that we were without “jurisdiction to consider this claim. Federal regulations prescribe a

mechanism by which inmates may appeal SAMs . . . and . . . the defendant has not yet

taken advantage of this mechanism. . . . The defendant must exhaust his administrative

remedies before challenging the SAMs in federal court.” Id. at 243-44. As in Abu Ali,

there has been no administrative exhaustion. We conclude that we are without jurisdiction

to entertain Cureton’s challenge to the SAMs.

                                                 IV

       We accordingly affirm in part and dismiss in part. In accordance with Anders, we

have reviewed the entire record and have found no meritorious issues for appeal. This

court requires that counsel inform Cureton, in writing, of the right to petition the Supreme

Court of the United States for further review. If Cureton requests that a petition be filed,

                                             7
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 state that a copy

thereof was served on Cureton. 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 IN PART,
                                                                    DISMISSED IN PART




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