                                     UNPUBLISHED

                        UNITED STATES COURT OF APPEALS
                            FOR THE FOURTH CIRCUIT


                                       No. 19-4394


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

TIMOTHY DYSON BELL, a/k/a Wu,

                     Defendant - Appellant.



Appeal from the United States District Court for the District of South Carolina, at Florence.
R. Bryan Harwell, Chief District Judge. (4:18-cr-00931-RBH-1)


Submitted: February 28, 2020                                      Decided: March 27, 2020


Before DIAZ and FLOYD, Circuit Judges, and TRAXLER, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Elizabeth Franklin-Best, ELIZABETH FRANKLIN-BEST, P.C., Columbia, South
Carolina, for Appellant. Everett E. McMillian, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Timothy Dyson Bell appeals his conviction and 57-month sentence imposed

pursuant to his guilty plea to possession with intent to distribute and distribution of cocaine

base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2018). Bell’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 the district court fully complied

with Fed. R. Crim. P. 11 and whether Bell’s sentence is reasonable. Although informed of

his right to do so, Bell did not file a pro se supplemental brief. The Government declined

to file a response. *

       Counsel first questions whether the district court complied with Rule 11, but points

to no specific error. As Bell did not move to withdraw his guilty plea, we review the

adequacy of the Rule 11 hearing for plain error. United States v. Sanya, 774 F.3d 812, 815

(4th Cir. 2014). To prevail on a claim of plain error, Bell must demonstrate not only that

the court erred but that the error affected his substantial rights. Id. at 816.

       Before accepting a guilty plea, the court must conduct a plea colloquy in which it

informs the defendant of, and determines he understands, the rights he is relinquishing by

pleading guilty, the charge to which he is pleading, and the maximum and mandatory

minimum penalties he faces. Fed. R. Crim. P. 11(b)(1); United States v. DeFusco, 949

F.2d 114, 116 (4th Cir. 1991). The court also must ensure that the plea was voluntary and


       *
         Because the Government fails to assert the appeal waiver, we may consider the
issues raised by counsel and conduct an independent review of the record pursuant to
Anders. See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).

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not the result of threats, force, or promises not contained in the plea agreement, Fed. R.

Crim. P. 11(b)(2), and “that there is a factual basis for the plea,” Fed. R. Crim. P. 11(b)(3).

       We conclude that the district court substantially complied with Rule 11. Moreover,

the court ensured that Bell entered his plea knowingly and voluntarily and that a factual

basis supported the plea. See DeFusco, 949 F.2d at 116, 119-20. Because Bell has failed

to show that the district court’s acceptance of his guilty plea was improper, we affirm his

conviction.

       Next, we review Bell’s sentence for reasonableness, applying “a deferential abuse

of discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This review entails

appellate consideration of both the procedural and substantive reasonableness of the

sentence. Id. at 51. In determining procedural reasonableness, we generally consider

whether the district court properly calculated the defendant’s advisory Sentencing

Guidelines range, considered the 18 U.S.C. § 3553(a) (2018) factors, analyzed any

arguments presented by the parties, and sufficiently explained the selected sentence. Id. at

51.   “Regardless 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.” United States v. Carter, 564 F.3d 325, 330 (4th Cir.

2009) (internal quotation marks omitted).         As Bell did not preserve his procedural

reasonableness claim below, we review for plain error. See United States v. Lynn, 592 F.3d

572, 577-80 (4th Cir. 2010).

       The district court properly calculated Bell’s advisory Guidelines range and

considered the § 3553(a) factors. However, the court did not provide an individualized

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assessment of the sentence it imposed. At sentencing, the court did not address how the

§ 3553(a) sentencing factors applied to Bell or his offense. Nevertheless, any error did not

affect Bell’s substantial rights, as the court imposed the exact within-Guidelines-range

sentence requested by Bell.

       Because Bell’s sentence is procedurally reasonable, we next consider whether the

sentence imposed is substantively reasonable under “the totality of the circumstances.”

Gall, 552 U.S. at 51. We presume that a sentence within or below a properly calculated

Guidelines range is substantively reasonable. United States v. Vinson, 852 F.3d 333, 357

(4th Cir. 2017). Such a “presumption can only be rebutted by showing that the sentence is

unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” Id. at 357-58

(internal quotation marks omitted). Here, Bell’s within-Guidelines-range sentence is

presumed reasonable. Because Bell does not argue that his sentence is substantively

unreasonable, he has failed to rebut the presumption. We therefore affirm Bell’s sentence.

       In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.

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

Court of the United States for further review. If Bell 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 state that a copy

thereof was served on Bell. We dispense with oral argument because the facts and legal




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contentions are adequately presented in the materials before this court and argument would

not aid the decisional process.

                                                                             AFFIRMED




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