                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4718



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


VANCE HICKS, a/k/a 19, a/k/a Jeffrey Gordon,
a/k/a John Williams,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:04-cr-00626-DCN-1)


Submitted:   March 7, 2007                 Decided:   April 30, 2007


Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David B. Betts, Columbia, South Carolina, for Appellant. Alston
Calhoun Badger, Jr., Assistant United States Attorney, Charleston,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Vance Hicks appeals his conviction and the 384-month

sentence imposed after he pled guilty to conspiracy to possess with

intent to distribute and to distribute five kilograms or more of

cocaine and 25,000 pills or more of ecstasy, in violation of 21

U.S.C. § 846 (2000).      Hicks’ counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), raising numerous issues

challenging Hicks’ conviction and sentence but stating that, in his

view, there are no meritorious issues for appeal.                Hicks has filed

a pro se supplemental brief.*            Finding no reversible error, we

affirm.

             Counsel    first    questions      whether    the   district     court

impermissibly participated in plea negotiations by providing a copy

of Hicks’ co-defendant’s presentence report to Hicks when he

objected to the amount of drugs proffered by the Government to

establish a factual basis for the plea during the hearing conducted

pursuant to Fed. R. Crim. P. 11.              Because Hicks moved to withdraw

his   plea   on   the   ground   that    the    court     participated   in    plea

negotiations,     our   review    is    for    harmless    error.    See    United

States v. Bradley, 455 F.3d 453, 461 (4th Cir. 2006) (stating

standard of review).




      *
      We have considered the claims raised in Hicks’                        pro   se
supplemental brief and find them to be without merit.

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            Rule 11(c)(1) of the Federal Rules of Criminal Procedure

“governs    guilty   pleas   and   clearly    prohibits    a     court   from

participating in plea negotiations.”         Id. at 460.       Hicks and the

Government had reached a plea agreement five days before the

hearing at which the district court gave counsel a copy of the

co-defendant’s presentence report, and Hicks admitted that he

already had the information contained in the report. Our review of

the record in this case leads us to conclude that the district

court’s actions did not violate Rule 11.          See United States v.

Cannady, 283 F.3d 641, 644 (4th Cir. 2002) (holding that district

court did not violate Rule 11(c)(1) where court’s comments were

made after “the parties had reached a definite agreement that had

been reduced to writing and executed by [the defendant] and the

government, all without any direct involvement by the district

judge”).

            Next, counsel raises as a potential issue the adequacy of

the plea colloquy in light of the district court’s failure to

explain explicitly that Hicks could persist in his plea of not

guilty, as required by Fed. R. Crim. P. 11(b)(1)(B). Because Hicks

did not move in the district court to withdraw his guilty plea on

this ground, any error in the Rule 11 hearing is reviewed for plain

error.     United States v. Martinez, 277 F.3d 517, 525 (4th Cir.

2002) (discussing standard of review).       We have carefully reviewed

the record and conclude that the district court’s omission did not


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affect Hicks’ substantial rights.     See United States v. Goins, 51

F.3d 400, 402-03 (4th Cir. 1995) (discussing factors courts should

consider in determining whether substantial rights affected in

decision to plead guilty).

          Counsel also challenges the district court’s denial of

Hicks’ motion to withdraw the plea.     Withdrawal of a guilty plea is

not a matter of right.     United States v. Ubakanma, 215 F.3d 421,

424 (4th Cir. 2000).   The defendant bears the burden of showing a

“fair and just reason” for the withdrawal of his guilty plea.    Fed.

R. Crim. P. 11(d)(2)(B).    “[A] ‘fair and just’ reason . . . is one

that essentially challenges . . . the fairness of the Rule 11

proceeding . . . .”    United States v. Lambey, 974 F.2d 1389, 1394

(4th Cir. 1992) (en banc).    Here, the district court applied the

factors set forth in Ubakanma, and we find no abuse of discretion

in the district court’s decision to deny Hicks’ motion to withdraw.

See 215 F.3d at 424 (stating standard of review).

          Turning to the district court’s denial of Hicks’ motion

to recuse the district court, counsel asserts that the district

court should have recused itself because it provided a copy of

Hicks’ co-defendant’s presentence report to the defense during the

plea colloquy. We find, however, that a “reasonable, well-informed

observer who assesses all the facts and circumstances” would not

find that the district court was biased.        See United States v.

DeTemple, 162 F.3d 279, 286 (4th Cir. 1998) (internal quotation


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marks and citation omitted).         Thus, we find no abuse of discretion

in the district court’s denial of relief.               See United States v.

Cherry, 330 F.3d 658, 665 (4th Cir. 2003) (stating standard of

review).

            Finally, counsel questions whether the district court

erred by enhancing Hicks’ offense level for possession of a weapon

under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2004), and

by   refusing    to   adjust   the   offense    level    for   acceptance      of

responsibility under USSG § 3E1.1.           After United States v. Booker,

543 U.S. 220 (2005), a district court is no longer bound by the

range prescribed by the sentencing guidelines.              United States v.

Hughes, 401 F.3d 540, 546 (4th Cir. 2005).            However, in imposing a

sentence post-Booker, courts still must calculate the applicable

guideline range after making the appropriate findings of fact and

consider the range in conjunction with other relevant factors under

the guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006).

United States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert.

denied,    126   S.   Ct.   2054   (2006).     This   court    will   affirm    a

post-Booker sentence if it “is within the statutorily prescribed

range and is reasonable.” Id. at 433 (internal quotation marks and

citation omitted).          “[A] sentence within the proper advisory

Guidelines range is presumptively reasonable.”              United States v.

Johnson, 445 F.3d 339, 341 (4th Cir. 2006).




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              Our review of the record convinces us that the district

court did not clearly err in applying the weapon enhancement or in

refusing      to   adjust     the   offense        level      for     acceptance    of

responsibility. See United States v. McAllister, 272 F.3d 228, 234

(4th Cir. 2001) (weapon enhancement); United States v. Ruhe, 191

F.3d 376, 388 (4th Cir. 1999) (acceptance of responsibility).                      The

district      court     therefore      properly      calculated        the   advisory

sentencing guideline range and sentenced Hicks after considering

and   examining       the   guidelines       and   the   §   3553(a)    factors,    as

instructed by Booker.          In addition, Hicks’ 384-month sentence is

well within the maximum sentence of life imprisonment.                        See 21

U.S.C.A. § 841(b)(1)(A) (West 1999 & Supp. 2006). Finally, neither

Hicks nor the record suggests any information so compelling as to

rebut   the    presumption      that     a    sentence       within    the   properly

calculated guideline range is reasonable.                    We therefore conclude

that the sentence is reasonable.

           In accordance with Anders, we have reviewed the record

for any meritorious issues and have found none.                        Therefore, we

affirm Hicks’ conviction and sentence.                   This court requires that

counsel inform his client, in writing, of his right to petition the

Supreme Court of the United States for further review.                        If the

client 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


                                        - 6 -
must state that a copy thereof was served on the client.        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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