United States of America v. Parish Gagum

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4143
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PARISH GAGUM,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:11-cr-00414-RBH-1)
Submitted: August 22, 2012 Decided: August 24, 2012
Before WILKINSON, GREGORY, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, Elizabeth V. Tilley, ELIZABETH VAUGHN TILLEY LAW
OFFICE, Myrtle Beach, South Carolina, for Appellant. William E.
Day, II, Assistant United States Attorney, Florence, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 6 --

2
PER CURIAM:
Parish Gagum pled guilty without a plea agreement to
one count of falsely making and forging United States
obligations, in violation of 18 U.S.C.A. § 471 (West Supp.
2012), and was sentenced to fourteen months in prison. Counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting that he has reviewed “both the facts and legal
issues of this case” and is of the opinion “that there are no
legal issues that were not properly raised or disposed of by the
trial court” and “no grounds for an appeal[.]” Counsel
nonetheless raises as possible issues for review whether the
district court complied with Fed. R. Crim. P. 11’s requirements
when it accepted Gagum’s guilty plea, and whether Gagum’s
fourteen-month sentence is reasonable. The Government has
declined to file a responsive brief and Gagum has not filed a
pro se supplemental brief, despite receiving notice of his right
to do so. Finding no error, we affirm.
Prior to accepting a guilty plea, a trial court,
through colloquy with the defendant, must inform the defendant
of, and determine that the defendant understands the nature of,
the charges to which the plea is offered, any mandatory minimum
penalty, the maximum possible penalty he faces, and the various
rights he is relinquishing by pleading guilty. Fed. R. Crim. P.
11(b). “In reviewing the adequacy of compliance with Rule 11,

-- 2 of 6 --

3
this Court should accord deference to the trial court’s decision
as to how best to conduct the mandated colloquy with the
defendant.” United States v. DeFusco, 949 F.2d 114, 116 (4th
Cir. 1991).
Because Gagum did not move the district court to
withdraw his guilty plea, any errors in the Rule 11 hearing are
reviewed for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). “To establish plain error, [Gagum]
must show that an error occurred, that the error was plain, and
that the error affected his substantial rights.” United States
v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Even if Gagum
satisfies these requirements, we retain discretion to correct
the error, which we should not exercise unless the error
seriously affects the fairness, integrity or public reputation
of judicial proceedings. Id.
A review of the record establishes that the district
court complied with Rule 11’s requirements, ensuring that
Gagum’s plea was knowing and voluntary, that he understood the
rights he was giving up by pleading guilty and the sentence he
faced, and that he committed the offense to which he pled
guilty. Accordingly, we discern no error in the district
court’s acceptance of Gagum’s guilty plea.
We also find no error in Gagum’s sentence. After
United States v. Booker, 543 U.S. 220 (2005), we review a

-- 3 of 6 --

4
sentence for reasonableness, using an abuse of discretion
standard of review. Gall v. United States, 552 U.S. 38, 51
(2007). The first step in this review requires the court to
ensure that the district court committed no significant
procedural error. United States v. Evans, 526 F.3d 155, 160-61
(4th Cir. 2008). Procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2012)] factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range.” Gall,
552 U.S. at 51.
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court, we review for abuse of discretion” and will reverse
unless we can conclude “that the error was harmless.” United
States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). If, and only
if, this court finds the sentence procedurally reasonable can
the court consider the substantive reasonableness of the
sentence imposed. United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009).
We discern no procedural or substantive sentencing
error by the district court. In particular, a review of Gagum’s

-- 4 of 6 --

5
sentencing hearing establishes that the district court correctly
attributed him with a total offense level of fifteen. See U.S.
Sentencing Guidelines Manual § 2B5.1 (2010). In conjunction
with his category I criminal history, Gagum’s Guidelines range
was calculated at eighteen to twenty-four months in prison.
After affording counsel an adequate opportunity to
argue regarding an appropriate sentence under the § 3553(a)
factors—during which time defense counsel asked for a variant
sentence within an eight-to-fourteen-month Guidelines range—and
affording Gagum an opportunity to allocute, the district court
imposed a fourteen-month variant sentence. The district court’s
explanation for Gagum’s sentence allows for sufficient appellate
review. See Carter, 564 F.3d at 328 (“[T]he district court must
state in open court the particular reasons supporting its chosen
sentence” and “set forth enough to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned
basis for exercising his own legal decisionmaking authority”)
(internal quotation marks omitted). We find that the variant
sentence below the advisory Guidelines range is substantively
reasonable.
We have examined the entire record in accordance with
our obligations under Anders and have found no meritorious
issues for appeal. Accordingly, we affirm the district court’s
judgment. This court requires that counsel inform Gagum, in

-- 5 of 6 --

6
writing, of the right to petition the Supreme Court of the
United States for further review. If Gagum 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 Gagum. 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.
AFFIRMED

-- 6 of 6 --