United States of America v. Demetrious Antonio McWhite

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4279
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMETRIOUS ANTONIO MCWHITE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:13-cr-00447-RBH-1)
Submitted: July 14, 2014 Decided: August 5, 2014
Before GREGORY and WYNN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Ray Coit Yarborough, Jr., LAW OFFICE OF RAY COIT YARBOROUGH,
JR., Florence, South Carolina, for Appellant. Alfred William
Walker Bethea, Jr., Assistant United States Attorney, Florence,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Demetrious Antonio McWhite pled guilty pursuant to a
plea agreement to one count of conspiracy to possess with intent
to distribute and distribute five kilograms or more of cocaine
and 280 grams or more of cocaine base, in violation of 21 U.S.C.
§ 846 (2012). The parties stipulated in the plea agreement to a
170-month prison sentence. See Fed. R. Crim. P. 11(c)(1)(C).
The district court accepted McWhite’s guilty plea pursuant to
the plea agreement and sentenced him to 170 months’
imprisonment.
On appeal, McWhite’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious issues for appeal, but raising as
issues for review whether the district court complied with Fed.
R. Crim. P. 11 in accepting McWhite’s guilty plea and whether
the 170-month prison sentence is reasonable. McWhite was
informed of his right to file a pro se supplemental brief, but
he has not done so. The Government declined to file a brief.
We affirm in part and dismiss in part.
Because McWhite did not move in the district court to
withdraw his guilty plea, the adequacy of the Fed. R. Crim. P.
11 hearing is reviewed for plain error only. United States v.
Martinez, 277 F.3d 517, 524–27 (4th Cir. 2002). To demonstrate
plain error, a defendant must show: (1) there was error; (2) the

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error was plain; and (3) the error affected his substantial
rights. United States v. Olano, 507 U.S. 725, 732 (1993).
In the guilty plea context, a defendant meets his burden to
establish that a plain error affected his substantial rights by
showing a reasonable probability that he would not have pled
guilty but for the district court’s Rule 11 omissions.
United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).
Our review of the transcript of the guilty plea
hearing leads us to conclude that the district court
substantially complied with the mandates of Rule 11 in accepting
McWhite’s guilty plea and that the court’s omissions did not
affect McWhite’s substantial rights. Critically, the transcript
reveals that the district court ensured that the plea was
supported by an independent basis in fact, and that McWhite
entered the plea knowingly and voluntarily with an understanding
of the consequences. United States v. DeFusco, 949 F.2d 114,
116, 120 (4th Cir. 1991). Accordingly, we discern no plain
error in the district court’s acceptance of McWhite’s guilty
plea.
Counsel also questions whether McWhite’s 170-month
prison sentence is reasonable. We conclude that we lack
jurisdiction to review this challenge. McWhite entered his
guilty plea pursuant to Fed. R. Crim. P. 11(c)(1)(C). The
federal statute governing appellate review of a sentence limits

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the circumstances under which a defendant may appeal a sentence
to which he stipulated in a Rule 11(c)(1)(C) plea agreement to
claims that the district court imposed the sentence
“in violation of law . . . [or] as a result of an incorrect
application of the [S]entencing [G]uidelines.” 18 U.S.C.
§ 3742(a)(1)-(2), (c) (2012); United States v. Sanchez, 146 F.3d
796, 797 & n.1 (10th Cir. 1998) (concerning Rule 11(e)(1)(C),
the predecessor provision to Rule 11(c)(1)(C)). McWhite’s
170-month sentence does not exceed the applicable statutory
maximum, see 21 U.S.C. § 841(b)(1)(A), was not based upon the
Sentencing Guidelines, and was the sentence for which he had
bargained. See United States v. Cieslowski, 410 F.3d 353, 364
(7th Cir. 2005) (“A sentence imposed under a Rule 11(c)(1)(C)
plea arises directly from the agreement itself, not from the
Guidelines.”). Review of McWhite’s 170-month sentence is thus
precluded by 18 U.S.C. § 3742(c).
Finally, in accordance with Anders, we have reviewed
the remainder of the record in this case and have found no
meritorious issues for appeal. We therefore affirm McWhite’s
conviction and dismiss the appeal of his sentence. This court
requires that counsel inform McWhite, in writing, of the right
to petition the Supreme Court of the United States for further
review. If McWhite requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then

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counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on McWhite.
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 IN PART;
DISMISSED IN PART

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