United States of America v. Jarvaris Antwan Andrews

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4788
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JARVARIS ANTWAN ANDREWS,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:08-cr-00144-NCT-1)
Submitted: May 20, 2010 Decided: June 16, 2010
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. McClellan, IVEY, MCCLELLAN, GATTON & TALCOTT, LLP,
Greensboro, North Carolina, for Appellant. Terry Michael
Meinecke, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Pursuant to a written plea agreement, Jarvaris Antwan
Andrews pled guilty to distribution of cocaine base (crack) and
was sentenced to 131 months in prison. He now appeals. His
attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), arguing that the district court should have
imposed a lower sentence because of the federal sentencing
guidelines’ disparate treatment of offenses involving crack and
those involving powder cocaine. Andrews raises the same issue
in his pro se brief. We affirm.
Our review of the transcript of the plea colloquy
discloses full compliance with Fed. R. Crim. P. 11.
Furthermore, the record reveals that Andrews entered his plea
voluntarily and knowingly and that there was a factual basis for
the plea. Finally, we have identified no meritorious appellate
issues related to the conviction.
Turning to Andrews’ sentence, his advisory Guidelines
range was 262-327 months. The district court granted the United
States’ Motion for Reduction of Sentence based on Andrews’
substantial assistance and sentenced Andrews to 131 months in
prison. Andrews contends that the district court should have
imposed an even lower sentence because of the crack/powder
disparity. He effectively is challenging, in light of Spears v.
United States, 129 S. Ct. 840 (2009), and Kimbrough v. United

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States, 552 U.S. 85 (2007), the district court’s application of
the mandatory crack-to-powder cocaine ratio that is incorporated
in the sentencing guidelines. Because he raises this issue for
the first time on appeal, our review is for plain error. See
Fed. R. Crim. P. 52(b); United State v. Jeffers, 570 F.3d 557,
569 (4th Cir.), cert. denied, 130 S. Ct. 645 (2009). To
establish plain error, Andrews “must show that an error
occurred, that the error was plain, and that it affected his
substantial rights.” See id.
Assuming without deciding that plain error occurred,
Andrews cannot establish that the error affected his substantial
rights. We previously “concluded that the error of sentencing a
defendant under a mandatory guidelines regime is neither
presumptively prejudicial nor structural” and that, to establish
that a plain error affected his substantial rights, a defendant
must demonstrate “actual prejudice” flowing from the error.
United States v. White, 405 F.3d 208, 223 (4th Cir. 2005). To
make this showing, the defendant must demonstrate that the error
“affected the outcome of the district court proceedings.” Id.
In this regard, the crucial question is “whether the record as a
whole provides [a] nonspeculative basis for concluding that [the
sentencing error] affected the district court’s selection of the
sentence imposed.” Id.

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Here, the district court made no comment at sentencing
concerning the crack/powder disparity. It would be only
speculation to conclude that the disparity in any way impacted
the court’s selection of the 131-month sentence. Accordingly,
there was no plain error. We further find that Andrews’
sentence was procedurally and substantively reasonable. See
Gall v. United States, 552 U.S. 38, 51 (2007). In this regard,
the district court properly calculated Andrews’ advisory
Guidelines range, applied the 18 U.S.C. § 3553(a) (2006)
sentencing factors, and adequately explained the variant
sentence. See id.
We accordingly affirm. In accordance with Anders, we
have thoroughly reviewed the record for any meritorious issues
and have found none. We therefore affirm. This court requires
that counsel inform his client, in writing, of his right to
petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but
counsel believes that such a petition would be frivolous,
counsel may move this court for leave to withdraw from
representation. Counsel’s motion must state that a copy of the
motion was served on the client. We dispense with oral argument
because the facts and legal contentions are adequately presented

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in the materials before the court and argument would not aid the
decisional process.
AFFIRMED

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