                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4483


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JEFFREY BERNARD JOYNER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
Chief District Judge. (4:11-cr-00078-D-1)


Submitted:   May 31, 2013                 Decided:   June 27, 2013


Before AGEE, DIAZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


W. H. Paramore, III, W. H. PARAMORE, III, P.C., Jacksonville,
North Carolina, for Appellant.       Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Pursuant      to     his     written     plea    agreement,        Jeffrey

Bernard    Joyner    pled       guilty     to     possession       with    intent    to

distribute twenty-eight grams or more of crack cocaine and an

unspecified     quantity       of   powder      cocaine,    in     violation    of    21

U.S.C. § 841(a)(1) (2006).              Joyner was subsequently sentenced to

126 months’ imprisonment.           This appeal followed.

            Counsel for Joyner has filed his brief pursuant to

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

are   no   nonfrivolous        issues     for     appeal,   but    questioning       the

substantive reasonableness of the 126-month departure sentence.

In his pro se supplemental brief, Joyner challenges the validity

of both the superseding indictment and his guilty plea.                        For the

following reasons, we affirm the judgment.

                                           I.

            We review any criminal sentence, “whether inside, just

outside,   or    significantly          outside    the   Guidelines       range,”    for

reasonableness,        “under       a      deferential        abuse-of-discretion

standard.”      United States v. King, 673 F.3d 274, 283 (4th Cir.),

cert. denied, 133 S. Ct. 216 (2012); see Gall v. United States,

552 U.S. 38, 46, 51 (2007).               When the district court imposes a

departure or variance sentence, this court considers “whether

the sentencing court acted reasonably both with respect to its

decision   to    impose    such     a    sentence    and    with    respect    to    the

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extent of the divergence from the sentencing range.”                             United

States    v.    Hernandez-Villanueva,            473   F.3d    118,   123    (4th     Cir.

2007).      The     district    court   “has       flexibility    in    fashioning          a

sentence outside of the Guidelines range,” and need only “‘set

forth     enough     to   satisfy      the       appellate    court     that    it        has

considered the parties’ arguments and has a reasoned basis’” for

its decision.        United States v. Diosdado-Star, 630 F.3d 359, 364

(4th Cir.) (quoting Rita v. United States, 551 U.S. 338, 356

(2007))    (alteration      omitted),        cert.     denied,    131   S.     Ct.    2946

(2011).

               In   reviewing    the     substantive          reasonableness         of     a

sentence, this court assesses “whether the District Judge abused

his discretion in determining that the [18 U.S.C.] § 3553(a)

[(2006)]       factors    supported      [the       sentence]     and    justified          a

substantial deviation from the Guidelines range.”                            Gall, 552

U.S. at 56.          We must “take into account the totality of the

circumstances, including the extent of [the] variance from the

Guidelines range.”         Id. at 51.             A more significant “departure

should be supported by a more significant justification.”                                 Id.

at 50.

               Although    counsel      only       challenges     the       substantive

reasonableness of Joyner’s sentence, because this is an Anders

appeal, we have also reviewed the procedural reasonableness of

the sentence and have discerned no procedural infirmity.                                  The

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district court properly calculated Joyner’s advisory Guidelines

range and cited Joyner’s extensive history of undeterred violent

criminality         and    chronic       recidivism         to    justify         its   upward

departure pursuant to U.S. Sentencing Guidelines Manual (“USSG”)

§ 4A1.3, p.s. (2011).                United States v. Dalton, 477 F.3d 195,

198 (4th      Cir.    2007).          The    126-month      sentence        was    twenty-one

months longer than the top of Joyner’s pre-departure Guidelines

range.        In     light      of    the      court’s     reasons     for        the   upward

departure, we readily conclude that the extent of this departure

is reasonable.        See United States v. Blakeney, 499 F. App’x 238,

243    (4th   Cir.    2012)        (unpublished       after      argument)        (concluding

that    the   district         court’s      “explanations        for   the    sentence      it

imposed” after upwardly departing under § 4A1.3 “were sufficient

to justify the extent of the departure”).                        Finally, the sentence

is procedurally sound in that the court permitted the parties to

argue    in   favor       of   a     particular       sentence,     allowed        Joyner   to

allocute, considered those arguments, and individually assessed

this defendant in light of the relevant sentencing factors.

              Counsel      contends      that       the   sentence     is    substantively

unreasonable because the district court failed to account for

Joyner’s “meaningful and important” assistance to the police.

(Anders Br. at 10).                The transcript of the sentencing hearing,

however, belies this contention.                      The transcript reveals that,

although      the     Government         did    not       deem   Joyner’s         cooperation

                                                4
significant enough to warrant a USSG § 5K1.1 motion, the court

nonetheless credited that effort in selecting its sentence.                    We

therefore    reject      Joyner’s     challenge      to      the     substantive

reasonableness of the sentence.

            To   fulfill   our   Anders     duty,   we    have     evaluated   the

entirety of the record and found no nonfrivolous basis on which

to otherwise contest the substantive reasonableness of Joyner’s

sentence.    Given the totality of circumstances present in this

case, we readily defer “to the district court’s decision that

the § 3553(a) factors, on a whole, justify the extent of the

variance.”       Gall,   552   U.S.   at    51.     Accordingly,      we   affirm

Joyner’s sentence.

                                      II.

            Joyner, in his pro se supplemental brief, challenges

the validity of the superseding indictment and argues his guilty

plea was not knowingly entered.              But a counseled guilty plea

waives all antecedent, nonjurisdictional defects not logically

inconsistent with the establishment of guilt, United States v.

Bowles, 602 F.3d 581, 582 (4th Cir. 2010), unless the defendant

can show that his plea was not voluntary and intelligent because

the advice of counsel “was not within the range of competence

demanded of attorneys in criminal cases.”                Tollett v. Henderson,

411 U.S. 258, 266 (1973) (internal quotation marks omitted).

Here, Joyner entered a counseled guilty plea and has not alleged

                                       5
that his plea was rendered involuntary by counsel’s ineffective

assistance.      Moreover, the alleged defect in the indictment is

not jurisdictional.            See United States v. Cotton, 535 U.S. 625,

631 (2002).      We therefore reject this claim.

              Joyner    next        argues   that   his    guilty       plea    was   not

knowingly and intelligently entered because the district court

did not explain that the threshold drug quantity, an element of

the    aggravated       offense,       was   satisfied         by   aggregating       drug

quantities       from          several       instances          and/or         controlled

transactions.         Joyner maintains that he should have been charged

under 21 U.S.C. § 841(b)(1)(C) (2006), which has no mandatory

minimum sentence and a twenty-year statutory maximum sentence.

Joyner concedes that, because he did not raise this issue in the

district court, this court’s review is for plain error only.                           To

establish plain error, Joyner must show that an error occurred,

that   the    error     was    plain,     and    that    the    error     affected    his

substantial rights.            United States v. Olano, 507 U.S. 725, 732,

734 (1993).

              We have not found any Fourth Circuit or Supreme Court

authority that addresses whether the district court’s failure to

apprise      Joyner    of     the    aggregation    necessary        to   achieve     the

threshold drug quantity is error such that it would undermine

his guilty plea.              Thus, any potential error by the district

court cannot be considered “plain.”                     United States v. Beasley,

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495 F.3d 142, 149-50 (4th Cir. 2007); see Olano, 507 U.S. at 734

(explaining       that     “plain”       error   “is     synonymous    with      clear

or . . . obvious” error (internal quotation marks omitted)).

               Joyner’s challenge to the validity of his guilty plea

also fails because it is contrary to his sworn statements at the

Fed. R. Crim. P. 11 hearing.               At two separate times during the

hearing, the district court explained that Count Two charged

Joyner with possession with intent to distribute twenty-eight

grams or more of cocaine base between January and May 2011.                         At

no point did Joyner express any confusion about this element or

otherwise       identify    any     concern      about    how   the    offense    was

charged.       To the contrary, Joyner testified that he understood

the charge and that he was in fact guilty as charged.

               Absent compelling evidence to the contrary, “the truth

of     sworn    statements     made       during    a    Rule   11    colloquy      is

conclusively established.”               United States v. Lemaster, 403 F.3d

216, 221-22 (4th Cir. 2005); see Blackledge v. Allison, 431 U.S.

63, 74 (1977) (holding that a defendant’s declarations at the

Rule    11     hearing     “carry    a    strong    presumption       of   verity”).

Because of that strong presumption and without more, Joyner’s

claim that he did not understand this element does not support

vacating his conviction.

               In accordance with Anders, we have reviewed the entire

record in this case and have identified no meritorious issues

                                            7
for appeal.       The district court complied with the requirements

of Rule 11(b), ensuring that Joyner’s guilty plea was knowing

and voluntary and supported by an independent basis in fact.

Accordingly, we affirm the criminal judgment.

           This    court    requires     that    counsel   inform      Joyner,    in

writing,   of    his   right     to   petition   the    Supreme   Court    of    the

United States for further review.                If Joyner 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 Joyner.                        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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