                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5154


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

LAVON RICHARD CALDWELL, a/k/a Jamal Garrison,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:07-cr-00293-RDB-2)


Submitted:    June 10, 2009                 Decided:   July 7, 2009


Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Gary E. Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC, Baltimore,
Maryland, for Appellant. Paul E. Budlow, OFFICE OF THE UNITED
STATES ATTORNEY, Tonya Kelly Kowitz, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                  Lavon     Richard    Caldwell     appeals     from    the     sixty-one

month sentence imposed following his guilty plea, pursuant to a

written plea agreement, to one count of conspiracy to commit

bank fraud, in violation of 18 U.S.C. § 1349 (2006) (Count 1),

and one count of aggravated identity theft, in violation of 18

U.S.C. §§ 2, 1028A(a)(1) (2006) (Count 3).                      Caldwell’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 the validity of Caldwell’s guilty plea

and whether Caldwell’s sentence is reasonable.                        Caldwell filed a

pro    se    supplemental       brief,    alleging       that   his    guilty    plea   is

invalid because of trial counsel’s ineffective assistance and

that his sentence is unreasonable because the amount of total

loss        and     his      criminal    history      points      were     incorrectly

calculated.          The Government has not filed a brief.                    Finding no

error, we affirm.



                                              I.

                  Counsel     first     questions        the    issue     of      whether

Caldwell’s guilty plea was invalid, but concludes that it was

knowing and voluntary.                Prior to accepting a defendant’s guilty

plea, Federal Rule of Criminal Procedure 11(b)(1) (“Rule 11”)

requires the district court to address the defendant in open

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court and ensure he understands the following: the nature of the

charge against him; any mandatory minimum sentence; the maximum

possible      sentence,       including      imprisonment,          fine,     and     term    of

supervised         release;        the    mandatory        special      assessment;          the

applicability         of    the     advisory        Guidelines;       his     right    to     an

attorney at all stages of the proceedings; his right to plead

not guilty; his right to a jury trial with the assistance of

counsel; his right to confront and cross-examine witnesses; his

right to testify on his own behalf and his right against self-

incrimination; the court’s authority to order restitution; any

applicable forfeiture; and the government’s right to use any of

his statements under oath in a perjury prosecution.                                   Fed. R.

Crim. P. 11(b)(1).                The district court must also inform the

defendant that he may not withdraw his guilty plea once the

court accepts it and imposes a sentence.                              Fed. R. Crim. P.

11(e).        Additionally, the district court must “determine that

there    is    a    factual       basis   for   the       plea.”      Fed.    R.    Crim.     P.

11(b)(3).           Finally,        the    district         court     must     ensure        the

defendant’s        plea     was    voluntary        and   did   not    come    about     as    a

result    of       force,    threats,      or       promises.         Fed.    R.    Crim.     P.

11(b)(2).

               Because Caldwell did not move to withdraw his guilty

plea in the district court or raise any objections during the

Rule 11 colloquy, the plea colloquy is reviewed for plain error.

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United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002);

United States v. General, 278 F.3d 389, 393 (4th Cir. 2002).             To

demonstrate    plain   error,   Caldwell   must    show   that   an   “error

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

his substantial rights.”         General, 278 F.3d at 393 (internal

quotation marks and citation omitted).           An error is plain if it

is “clear” or “obvious.”        United States v. Olano, 507 U.S. 725,

734 (1993).     A defendant’s substantial rights are affected if

the Court determines that the error “influenced the defendant’s

decision to plead guilty and impaired his ability to evaluate

with eyes open the direct attendant risks of accepting criminal

responsibility.”       United States v. Goins, 51 F.3d 400, 402-03

(4th Cir. 1995) (internal quotation marks and citation omitted);

see also Martinez, 277 F.3d at 532 (holding that a defendant

must demonstrate that he would not have pled guilty but for the

error).

            Counsel    makes     an   argument     that    Caldwell     was

incorrectly informed of his rights because the district court

stated that the two year sentence for Count 3 ran concurrent to

the sentence for Count 1.         However, it is clear the district

court misspoke, as the judge immediately explained that “you

will have two years in addition to whatever the sentence is for

Count 1.”     Moreover, the written plea agreement Caldwell signed

stated that the sentence for Count 3 would run consecutive to

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any sentence for Count 1.             Counsel does not allege any further

errors in the district court’s Rule 11 colloquy and our review

of    the   record   reveals     that   the   district      court      substantially

complied with the mandates of Rule 11 in accepting Caldwell’s

guilty plea.



                                        II.

             Counsel     next      challenges        the     reasonableness          of

Caldwell’s sentence. *          Consistent with United States v. Booker,

543 U.S. 220 (2005), the district court is required to follow a

multi-step process at sentencing.              First, it must calculate the

proper sentencing range prescribed by the Guidelines.                          Gall v.

United States, 552 U.S. 32, ___, 128 S. Ct. 586, 596 (2007);

see also United States v. Abu Ali, 528 F.3d 210, 260 (4th Cir.

2008).       It   must   then    consider     that   range       in    light   of    the

parties’ arguments regarding the appropriate sentence and the

factors set out in 18 U.S.C. § 3553(a) (2006), before imposing

its    sentence.       Gall,    552   U.S.    at   ___,    128    S.    Ct.    at   596;

see also Abu Ali, 528 F.3d at 260.

       *
         In the plea agreement, Caldwell waived his right to
appeal a sentence within the advisory Guidelines range for an
adjusted offense level of 20 or lower on Count 1 plus two years’
imprisonment on Count 3.     However, the Government failed to
assert the waiver as a bar to the appeal.     Therefore, we may
undertake an Anders review.    United States v. Poindexter, 492
F.3d 263, 271 (4th Cir. 2007).


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            We review the district court’s sentence for abuse of

discretion.     Gall, 552 U.S. at ___, 128 S. Ct. at 591.                     First,

we   must   ensure     the    district      court     did       not    commit      any

“significant procedural error,” such as failing to consider the

18 U.S.C. § 3553(a) factors or failing to adequately explain the

sentence.      Id. at 597.     The district court is not required to

“robotically tick through § 3553(a)’s every subsection.”                      United

States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).                      However,

the district court must “place on the record an individualized

assessment based on the particular facts of the case before it.

This individualized assessment need not be elaborate or lengthy,

but it must provide a rationale tailored to the particular case

at hand and adequate to permit meaningful appellate review.”

United   States   v.   Carter,    564   F.3d   325,       330   (4th   Cir.     2009)

(internal   quotation    marks,     footnote,       and    citations     omitted).

This is true even when the district court sentences a defendant

within the applicable Guidelines range.             Id.

            Once we have determined there is no procedural error,

we must consider the substantive reasonableness of the sentence,

taking into account the totality of the circumstances.                          Gall,

552 U.S. at ___, 128 S. Ct. at 597.            If the sentence imposed is

within   the    appropriate      Guidelines    range,       on    appeal      it    is

presumptively reasonable.         United States v. Go, 517 F.3d 216,

218 (4th Cir. 2008).          The presumption may be rebutted by a

                                        6
showing “that the sentence is unreasonable when measured against

the § 3553(a) factors.”                United States v. Montes-Pineda, 445

F.3d   375,    379   (4th     Cir.   2006)       (internal      quotation    marks    and

citation omitted).

              Our review of the record reveals that the district

court properly calculated Caldwell’s advisory Guidelines range

of thirty-seven to forty-six months on Count 1.                        Additionally,

the    district      court    provided       a    lengthy       explanation    of     the

sentence,     noting    that     the     nature      and    circumstances      of     the

offense were “egregious” and that there were numerous victims

and a large amount of money involved.                      The district court also

viewed Caldwell as “probably the second most culpable person in

this    entire    ring,”      noting    that      Caldwell      did   not    appear   to

recognize his level of wrongdoing.                    The record is also clear

that    the    district      court     considered         the    arguments    of     both

attorneys      and     Caldwell’s        allocution         prior     to     sentencing

Caldwell.      Therefore, we find that the district court performed

an     adequate      individualized          assessment         and   committed       no

procedural error.

              Furthermore, Caldwell’s within-Guidelines sentence is

presumptively reasonable on appeal and Caldwell has not rebutted

that presumption.            Therefore, we find that the district court

committed      no     substantive        error       in      sentencing       Caldwell.

Accordingly, the district court did not abuse its discretion in

                                           7
sentencing          Caldwell        to     thirty-seven            months’         imprisonment         on

Count     1     and       a     consecutive               term     of       twenty-four             months’

imprisonment on Count 3.



                                                     III.

               In    his      pro    se       supplemental         brief,         Caldwell         alleges

that    his    guilty         plea       is    invalid       because         of    the    ineffective

assistance       of    counsel.                A     defendant        may     raise       a    claim    of

ineffective assistance of counsel “on direct appeal if and only

if it conclusively appears from the record that his counsel did

not provide effective assistance.”                               United States v. Martinez,

136    F.3d     972,      979       (4th       Cir.       1998).        To     prove      ineffective

assistance,         the       defendant            must     show      two     things:         (1)    “that

counsel’s      representation                 fell    below      an     objective         standard      of

reasonableness” and (2) “that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding          would       have          been        different.”               Strickland           v.

Washington, 466 U.S. 668, 688, 694 (1984).                                   In the context of a

guilty plea, “the defendant must show that there is a reasonable

probability that, but for counsel’s errors, he would not have

pleaded       guilty      and    would         have       insisted       on       going       to   trial.”

Hill v. Lockhart, 474 U.S. 52, 59 (1985).                                     Our review of the

record reveals no conclusive evidence that Caldwell’s counsel

did    not    provide         effective            assistance.          We    have       examined      the

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remainder of Caldwell’s pro se claims and find them to lack

merit.

            In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm Caldwell’s conviction and sentence.                      This

court requires that counsel inform Caldwell, in writing, of his

right to petition the Supreme Court of the United States for

further review.      If Caldwell 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 Caldwell.        We dispense with oral argument because

the facts and legal conclusions are adequately presented in the

materials   before     the   court    and    argument   would    not   aid   the

decisional process.

                                                                       AFFIRMED




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