                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 16-4152


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RODERICK LAUADES BROWN, a/k/a Nick,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., District Judge. (3:14-cr-00147-RJC-DCK-1)


Submitted:   September 29, 2016           Decided:   October 3, 2016


Before SHEDD, KEENAN, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Chiege O. Kalu Okwara, Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       In February 2014, Roderick Lauades Brown received a 26-

month sentence based on his guilty plea conviction to possession

with intent to distribute cocaine based on conduct occurring in

2007.       In 2014, while Brown was serving his 26-month sentence,

he   entered        a     guilty    plea    to       two    counts    of   a     superseding

indictment: conspiracy to distribute and possess with intent to

distribute at least five kilograms of cocaine (Count 1); and

conspiracy to commit money laundering (Count 2), for his conduct

in 2011 through 2012.                Brown was sentenced to 120 months of

imprisonment.             Thereafter       the       district    court     denied      Brown’s

motion to dismiss the indictment—Brown did not seek to withdraw

his guilty plea.                On appeal Brown’s counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting

that       there    are    no    meritorious         issues     for   appeal     but   asking

whether       the    district      court    erred          by   denying    his    motion   to

dismiss the indictment on the grounds of unjustifiable delay. *

We affirm.


       *
       In his Anders brief, counsel also notes that Brown waived
his right to appeal his conviction and sentence except for
circumstances not raised in this appeal. Because the Government
fails to seek dismissal of Brown’s appeal on this basis,
however, we are constrained to address the appeal on the merits.
See United States v. Blick, 408 F.3d 162, 168-69 (4th Cir. 2005)
(noting this Court will enforce an appeal waiver where the
Government seeks to enforce the appeal waiver and the record
establishes the defendant knowingly and intelligently waived his
(Continued)
                                                 2
      We    review    due   process    claims       de    novo,   United    States     v.

Westbrooks, 780 F.3d 593, 595 (4th Cir. 2015), noting that Fifth

Amendment Due Process Clause requires dismissal of an indictment

if it is shown that a pre-indictment delay caused substantial

prejudice to a defendant’s rights to a fair trial and that the

delay was an intentional device to gain tactical advantage over

the accused.      United States v. Marion, 404 U.S. 307, 324 (1971).

We conduct a two-pronged inquiry to evaluate a defendant’s claim

that pre-indictment delay violated his right to due process:

first we examine whether the defendant has satisfied his burden

of    proving   actual      prejudice        and,    if     so,   we    consider      the

government’s reasons for the delay, balancing the prejudice to

the   defendant      with   the     Government’s         justification     for    delay.

United States v. Uribe-Rios, 558 F.3d 347, 358 (4th Cir. 2009).

In evaluating the first prong, we are mindful that the defendant

bears   a    “heavy    burden”      because     he    must     demonstrate       “actual

prejudice, as opposed to mere speculative prejudice,” and must

“show   that    any   actual      prejudice     was      substantial—that        he   was

meaningfully      impaired     in    his     ability      to   defend    against      the

state’s charges to such an extent that the disposition of the

criminal     proceeding     was     likely     affected.”         United   States      v.



right to appeal under the totality of the circumstances, and the
issues raised on appeal fall within the scope of the waiver).



                                           3
Shealey,     641    F.3d     627,    633-34     (4th     Cir.    2011)     (internal

quotation marks omitted).            We find this claim fails as Brown has

shown not actual prejudice.           Id.

      In    accordance      with    the   requirements     of    Anders,    we    have

examined the entire record and have found no meritorious issues,

noting that Brown pled guilty pursuant to plea hearing conducted

in compliance with Fed. R. Crim. P. 11, and that his sentence

was   not   unreasonable      or    otherwise    erroneous. †       We     therefore

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

counsel inform Brown, in writing, of the right to petition the

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

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 Brown.                          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




      †Our Anders review includes the issues raised in Brown’s
pro se supplemental brief.



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