                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4210


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JERMAL LEE, a/k/a Jermal Ari Lee,

                Defendant - Appellant.



                            No. 12-4237


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KEVIN GOLDSMITH, a/k/a Kevin Lamont Goldsmith,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Greenville. J. Michelle Childs, District
Judge. (6:11-cr-00338-JMC-5; 6:11-cr-00338-JMC-9)


Submitted:   December 18, 2012            Decided:   February 7, 2013


Before WYNN, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Jill E.M. HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston,
South Carolina; T. Kirk Truslow, TRUSLOW LAW FIRM, LLC, North
Myrtle Beach, South Carolina, for Appellants.      Andrew Burke
Moorman, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            In these consolidated appeals, Jermal Lee and Kevin

Goldsmith appeal their convictions and respective 180-month and

204-month   sentences     following    guilty       pleas   to    conspiracy     to

possess   with   intent   to   distribute      five   kilograms      or   more   of

cocaine, 280 grams or more of cocaine base, and 1000 kilograms

of marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)

(2006).     Appellate     counsel   filed      a   joint    brief   pursuant     to

Anders v. California, 386 U.S. 738 (1967), certifying that there

are no meritorious issues for appeal, but questioning whether

the district court fully complied with Fed. R. Crim. P. 11 in

accepting     the   appellants’       guilty       pleas    and     whether      the

appellants’ sentences are reasonable.

            In Lee’s pro se supplemental brief, he argues that:

(1) his appellate waiver is void and should not be enforced;

(2) his guilty plea is void because the trial court failed to

inform him of the mandatory minimum sentence during the plea

colloquy and failed to elicit an oral plea of guilty from him;

(3) his sentence was erroneously enhanced pursuant to 21 U.S.C.

§ 851 and the career offender enhancement provision; and (4) his

trial counsel provided ineffective assistance by allowing him to

plead guilty when he was actually innocent.                 In Goldsmith’s pro

se supplemental brief, he asserts that: (1) his trial counsel

was constitutionally ineffective for failing to inform him that

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he    qualified    as    a   career      offender,     failing     to    perform     an

adequate investigation into the facts of the case, and failing

to    adequately    research       the    sentencing        options;    (2)   he    was

erroneously sentenced as a career offender; and (3) his sentence

was   erroneously       enhanced    pursuant     to    21    U.S.C.     § 851.      The

Government declined to file a responsive brief.                          Following a

careful review of the record, we affirm.

            We first address the plea colloquies.                 Federal Rule of

Criminal Procedure 11 requires a trial court, prior to accepting

a guilty plea, to conduct a plea colloquy in which it informs

the defendant of, and determines that the defendant comprehends,

the nature of the charges to which he is pleading guilty, any

mandatory    minimum      penalty,       the   maximum       possible    penalty    he

faces, and the rights he is relinquishing by pleading guilty.

United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).

Additionally,      the       district      court      must     ensure     that      the

defendant’s plea was voluntary and did not result from force,

threats, or promises not contained in the plea agreement.                          Fed.

R. Crim. P. 11(b)(2).          “In reviewing the adequacy of compliance

with Rule 11, this [c]ourt should accord deference to the trial

court’s decision as to how best to conduct the mandated colloquy

with the defendant.”         DeFusco, 949 F.2d at 116.

            Because Lee and Goldsmith did not move to withdraw

their guilty pleas in the district court or raise any objections

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to the Rule 11 colloquies, the colloquies are reviewed for plain

error.       United States v. Martinez, 277 F.3d 517, 524-27 (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).                  To establish that a

Rule 11 error has affected a defendant’s substantial rights, the

defendant must “show a reasonable probability that, but for the

error, he would not have entered the plea.”                      United States v.

Dominguez Benitez, 542 U.S. 74, 83 (2004).

              Our review of the plea colloquy transcripts reveals

that the district court failed to inform both appellants that

they faced a mandatory minimum sentence of life imprisonment, as

required by Fed. R. Crim. P. 11(b)(1), which constitutes plain

error.      United States v. General, 278 F.3d 389, 394 (4th Cir.

2002).      However, we conclude that the error does not affect the

appellants’ substantial rights, as the record reveals that both

appellants were aware that they faced a mandatory minimum term

of life imprisonment prior to pleading guilty.                     The appellants

stipulated in their respective plea agreements that they each

had   two    prior     felony   drug     convictions,    subjecting     them    to   a

mandatory      minimum       term   of   life     imprisonment   pursuant      to    21

U.S.C.      § 851.      In    addition,     the    Government    reiterated      this

information during the Rule 11 colloquies when reviewing the

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plea agreements.              While Lee argues on appeal that the district

court’s failure to inform him of the mandatory minimum sentence

renders his guilty plea invalid, he does not assert that, but

for this error, he would not have pled guilty.                                      Moreover, the

record does not reflect that any lack of understanding of the

mandatory    minimum           affected   Lee’s          or       Goldsmith’s        decision     to

enter a guilty plea.                Notwithstanding the failure to inform the

appellants     of       the    applicable      mandatory            minimum         sentence,    the

court     otherwise           complied    with       Rule         11     at    both       hearings.

Although the court did not specifically elicit an oral plea from

the   appellants,         this      is   not    required            by   Rule       11,    and   the

appellants confirmed their desire to plead guilty by signing a

written plea during the Rule 11 hearing.                            The court ensured that

Lee’s and Goldsmith’s guilty pleas were knowing and voluntary,

that they understood the rights they were giving up by pleading

guilty, and that they committed the offense to which they pled

guilty.

            We next address the reasonableness of the sentences.

We    review        a     sentence        for        procedural               and     substantive

reasonableness,          applying        an    abuse          of       discretion         standard.

Gall v. United States, 552 U.S. 38, 51 (2007).                                  In determining

the     procedural        reasonableness            of        a    sentence,          this    court

considers    whether          the    district       court         properly      calculated       the

Guidelines range, treated the Guidelines as advisory, considered

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the   §   3553    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).

            We        assess      the    substantive           reasonableness          of        the

sentence     by        “taking      into     account           the    totality         of       the

circumstances, including the extent of any variance from the

Guidelines range.”               United States v. Pauley, 511 F.3d 468, 473

(4th Cir. 2007) (internal quotation marks and citation omitted).

We    presume     that       a    below-Guidelines           sentence       is   reasonable.

United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012).                                       That

this court would have imposed a different sentence is not reason

alone to vacate the district court’s sentence.                          United States v.

Morace, 594 F.3d 340, 346 (4th Cir. 2010).

            We conclude that the district court committed neither

procedural       nor    substantive        error       in    sentencing.             The    court

accurately       stated       the   statutory          mandatory      sentence        of        life

imprisonment          that       applied     to        Lee     and    Goldsmith            before

consideration          of    the     Government’s            motion     for      a    downward

departure,       verified         that     the       appellants       had     reviewed          and

discussed       the    presentence         report       with    their       attorneys,           and

                                                 7
entertained     arguments          from   both       appellants          for    a    particular

sentence.      In addition, the appellants’ sentences were properly

enhanced     pursuant        to     21    U.S.C.       § 851,          contrary      to    their

arguments      on    appeal,       as    they       each    had    at     least      two   prior

qualifying felony drug convictions.                         Lee was likewise properly

classified as a career offender.                           Although Goldsmith asserts

that he was erroneously designated a career offender, our review

of the record indicates that he was not, in fact, classified or

sentenced as a career offender.                       Accordingly, his argument is

without merit.

            In their pro se briefs, Lee and Goldsmith both assert

that   their        trial     counsel      rendered          ineffective            assistance.

Claims of ineffective assistance of counsel are generally not

cognizable     on        direct    appeal,      unless       the       record   conclusively

establishes counsel’s “objectively unreasonable performance” and

resulting prejudice.              United States v. Benton, 523 F.3d 424, 435

(4th Cir. 2008).             The record does not conclusively establish

that   trial    counsel       rendered       ineffective           assistance        to    either

appellant.           Lee    and     Goldsmith         must    therefore         bring      their

allegations         of    ineffective      assistance             of    counsel      in    a   28

U.S.C.A. § 2255 (West Supp. 2012) motion, should they wish to

pursue such claims.               United States v. Baptiste, 596 F.3d 214,

216 n.1 (4th Cir. 2010).



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            In accordance with Anders, we have reviewed the entire

record for meritorious issues and have found none.                     We therefore

affirm the district court’s judgment.                 This court requires that

counsel inform Lee and Goldsmith, in writing, of their right to

petition   the   Supreme     Court   of       the   United    States   for   further

review.    If Lee or Goldsmith requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

counsel    may   move   in   this    court      for   leave    to   withdraw    from

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

was served on Lee and Goldsmith.               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




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