                                UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 14-4279


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

DEMETRIOUS ANTONIO MCWHITE,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:13-cr-00447-RBH-1)


Submitted:   July 14, 2014                    Decided:     August 5, 2014


Before GREGORY    and   WYNN,    Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed in part; dismissed in part by unpublished per curiam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


Ray Coit Yarborough, Jr., LAW OFFICE OF RAY COIT YARBOROUGH,
JR., Florence, South Carolina, for Appellant.    Alfred William
Walker Bethea, Jr., Assistant United States Attorney, Florence,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Demetrious Antonio McWhite pled guilty pursuant to a

plea agreement to one count of conspiracy to possess with intent

to distribute and distribute five kilograms or more of cocaine

and 280 grams or more of cocaine base, in violation of 21 U.S.C.

§ 846 (2012).       The parties stipulated in the plea agreement to a

170-month prison sentence.           See Fed. R. Crim. P. 11(c)(1)(C).

The district court accepted McWhite’s guilty plea pursuant to

the   plea        agreement    and   sentenced       him      to    170       months’

imprisonment.

             On    appeal,    McWhite’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, but raising as

issues for review whether the district court complied with Fed.

R. Crim. P. 11 in accepting McWhite’s guilty plea and whether

the   170-month      prison   sentence       is   reasonable.        McWhite     was

informed of his right to file a pro se supplemental brief, but

he has not done so.           The Government declined to file a brief.

We affirm in part and dismiss in part.

             Because McWhite did not move in the district court to

withdraw his guilty plea, the adequacy of the Fed. R. Crim. P.

11 hearing is reviewed for plain error only.                  United States v.

Martinez, 277 F.3d 517, 524–27 (4th Cir. 2002).                    To demonstrate

plain error, a defendant must show: (1) there was error; (2) the

                                         2
error    was    plain;       and    (3)       the     error       affected    his       substantial

rights.        United       States       v.     Olano,      507     U.S.    725,       732   (1993).

In the    guilty      plea       context,        a       defendant    meets       his    burden     to

establish that a plain error affected his substantial rights by

showing a reasonable probability that he would not have pled

guilty    but        for     the       district           court’s     Rule        11     omissions.

United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).

               Our    review        of    the        transcript       of     the       guilty     plea

hearing     leads          us     to      conclude          that      the        district         court

substantially complied with the mandates of Rule 11 in accepting

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

affect McWhite’s substantial rights.                          Critically, the transcript

reveals    that       the       district        court       ensured       that     the    plea     was

supported      by    an     independent          basis       in    fact,    and     that     McWhite

entered the plea knowingly and voluntarily with an understanding

of the consequences.                United States v. DeFusco, 949 F.2d 114,

116, 120 (4th Cir. 1991).                        Accordingly, we discern no plain

error in the district court’s acceptance of McWhite’s guilty

plea.

               Counsel       also      questions           whether        McWhite’s       170-month

prison    sentence          is     reasonable.              We     conclude       that       we   lack

jurisdiction         to    review        this    challenge.           McWhite          entered     his

guilty    plea       pursuant       to    Fed.       R.    Crim.     P.    11(c)(1)(C).            The

federal statute governing appellate review of a sentence limits

                                                     3
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         the      district      court         imposed        the        sentence

“in violation       of    law . . . [or]         as    a    result    of    an    incorrect

application       of     the    [S]entencing          [G]uidelines.”             18     U.S.C.

§ 3742(a)(1)-(2), (c) (2012); United States v. Sanchez, 146 F.3d

796, 797 & n.1 (10th Cir. 1998) (concerning Rule 11(e)(1)(C),

the   predecessor         provision     to    Rule         11(c)(1)(C)).          McWhite’s

170-month    sentence          does   not    exceed        the   applicable       statutory

maximum, see 21 U.S.C. § 841(b)(1)(A), was not based upon the

Sentencing Guidelines, and was the sentence for which he had

bargained.        See United States v. Cieslowski, 410 F.3d 353, 364

(7th Cir. 2005) (“A sentence imposed under a Rule 11(c)(1)(C)

plea arises directly from the agreement itself, not from the

Guidelines.”).           Review of McWhite’s 170-month sentence is thus

precluded by 18 U.S.C. § 3742(c).

            Finally, in accordance with Anders, we have reviewed

the remainder of the record in this case and have found no

meritorious issues for appeal.                   We therefore affirm McWhite’s

conviction and dismiss the appeal of his sentence.                               This court

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

to petition the Supreme Court of the United States for further

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

counsel believes that such a petition would be frivolous, then

                                             4
counsel    may   move    in    this   court    for    leave    to   withdraw   from

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

was served on McWhite.

            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




                                         5
