                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-5205


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

SANFORD LEE MARTIN,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Danville.    Glen E. Conrad, Chief
District Judge. (4:09-cr-00038-GEC-1)


Submitted:   August 18, 2011                 Decided:   August 30, 2011


Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Killis T. Howard, KILLIS T. HOWARD, P.C., Lynchburg, Virginia,
for Appellant.   Ronald Andrew Bassford, Assistant United States
Attorney, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Sanford Lee Martin pleaded guilty, pursuant to a plea

agreement, to communicating a threat in interstate commerce, in

violation   of          18    U.S.C.      § 875(c)       (2006).           The    district      court

sentenced    Martin            to    fifteen       months’        imprisonment         and      three

years’ supervised release. 1                      Martin appealed, and his counsel

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967),    certifying              that    there    are      no     meritorious       issues      for

appeal but asking this court to review the validity of Martin’s

guilty    plea      and       to    review    the       sentence       for       reasonableness. 2

Although informed of his right to file a pro se supplemental

brief, Martin has not done so.                         Finding no reversible error, we

affirm.

            A       guilty          plea     is    constitutionally                valid     if    it

“represents         a        voluntary      and        intelligent         choice     among       the

alternative courses of action open to the defendant.”                                           North

Carolina    v.      Alford,          400    U.S.       25,     31    (1970).          This      court

evaluates       a       guilty       plea     based       on        “the    totality       of     the

circumstances” surrounding the guilty plea.                                  United States v.

     1
       Martin has been released from prison and currently is
serving his term of supervised release.
     2
       Because the Government has not sought enforcement of
Martin’s waiver of appellate rights, we may conduct our review
of the sentence pursuant to Anders.        See United States v.
Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).



                                                   2
Moussaoui,     591    F.3d      263,    278       (4th Cir. 2010).         A    properly

conducted Rule 11 colloquy creates a “strong presumption” that a

plea   of    guilty     was     taken    appropriately        and    is    “final      and

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

(4th Cir. 1992) (en banc).

             Martin did not move to withdraw his guilty plea, and

this court therefore reviews the adequacy of the plea pursuant

to Fed. R. Crim. P. 11 for plain error.                      See United States v.

Vonn, 535 U.S. 55, 58-59 (2002) (holding that “defendant who

lets Rule 11 error pass without objection” in district court

must satisfy plain-error test); United States v. Massenburg, 564

F.3d 337, 342 (4th Cir. 2009).                To establish plain error, Martin

“must show: (1) an error was made; (2) the error is plain; and

(3) the error affects substantial rights.”                    Massenburg, 564 F.3d

at 342-43.       To demonstrate impact on his substantial rights,

Martin must show that, but for error, he would not have pleaded

guilty.        United     States        v.    Martinez,      277    F.3d       517,    532

(4th Cir. 2002).        Even if such error is found, it is within this

court’s discretion to notice the error, and this court does so

“only if the error seriously affects the fairness, integrity or

public      reputation        of   judicial         proceedings.”          Massenburg,

564 F.3d at 343 (internal quotation marks omitted).

             We note that the district court neglected to inform

Martin of the maximum term of supervised release he faced and

                                              3
the court’s authority to order restitution, as required by Rule

11(b)(1)(H)       and    (K),     respectively.                 We    conclude    that     the

district       court’s        minor     omissions         did    not    affect     Martin’s

substantial      rights.          Martin’s          sentence     of    imprisonment      when

combined with the maximum term of supervised release to which he

was subject did not exceed the statutory maximum sixty-month

sentence.       See United States v. Bejarano, 249 F.3d 1304, 1306

n.1 (11th Cir. 2001) (collecting cases).                         Moreover, the district

court    did    not     order     restitution          in   this      case.       Martin    is

therefore unable to show that he would not have pleaded guilty

but for the district court’s omissions.

               We now turn to Martin’s sentence.                      We review sentences

for reasonableness, applying an abuse of discretion standard.

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

Diosdado-Star, 630 F.3d 359, 363 (4th Cir.), cert. denied, 131

S. Ct. 2946 (2011).             This review requires consideration of both

the    procedural       and    substantive          reasonableness       of   a   sentence.

Gall, 552 U.S. at 51.             In determining procedural reasonableness,

this    court        considers        whether       the     district     court     properly

calculated the defendant’s advisory Guidelines range, considered

the 18 U.S.C. § 3553(a) (2006) factors, analyzed any arguments

presented       by     the     parties,     and       sufficiently        explained        the

selected sentence.              Id.      Once the court assures itself that

there was no procedural error, we next assess the substantive

                                                4
reasonableness of the sentence.                         This inquiry requires us to

review    “whether         the   District         Judge    abused       his     discretion         in

determining that the § 3553(a) 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   any

variance from the Guidelines range.’”                         United States v. Morace,

594 F.3d 340, 346 (4th Cir.) (quoting Gall, 552 U.S. at 51),

cert. denied, 131 S. Ct. 307 (2010).                       This court affords within-

Guidelines           sentences          a         presumption             of         substantive

reasonableness.            See United States v. Mendoza-Mendoza, 597 F.3d

212, 216-17 (4th Cir. 2010).

              With these standards in mind, our review of the record

leads    us   to     conclude      that      Martin’s         sentence       is      procedurally

sound.        In    addition,      we       can       identify    no    facts         that    would

overcome      the      presumption           that       the      sentence         imposed         was

substantively reasonable.

              In accordance with Anders, we have thoroughly reviewed

the entire record in this case and have found no meritorious

issues for appeal.               We therefore affirm the district court’s

judgment.          This court requires that counsel inform Martin, in

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

United States for further review.                         If Martin requests that a

petition be filed, but counsel believes that such a petition

                                                  5
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 Martin.

            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.



                                                                    AFFRIMED




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