UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4717

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PHOUNG PHAN,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. N. Carlton Tilley, 

Jr., Senior District Judge. (1:07-cr-00360-NCT-1; 1:07-cr00373-NCT-1)

Submitted: January 18, 2011 Decided: May 31, 2011

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North 

Carolina, for Appellant. Graham Tod Green, Assistant United 

States Attorney, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Phoung Phan appeals his convictions and the 168-month 

sentence imposed by the district court following his guilty 

pleas to conspiracy to possess with intent to distribute 

ecstasy, and conspiracy to distribute 100 or more kilograms of 

marijuana, all in violation of 21 U.S.C. §§ 841, 846 (2006). 

Phan’s counsel has filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967) asserting that, in her opinion, 

there are no meritorious issues for appeal. Phan was notified 

of his right to file a pro se supplemental brief, but has not 

filed a brief. The Government declined to file a brief. We 

affirm. 

Because Phan did not move in the district court to 

withdraw his guilty plea, we review the Fed. R. Crim. P. 11 

hearing for plain error. United States v. Martinez, 277 F.3d 

517, 525 (4th Cir. 2002). “To establish plain error, [Phan] 

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). Our review of 

the record leads us to conclude that the district court 

substantially complied with Rule 11, and that Phan’s guilty plea 

was knowing and voluntary.

We review Phan’s sentence for abuse of discretion. 

Gall v. United States, 552 U.S. 38, 51 (2007). The first step 
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in this review requires us to ensure that the district court 

committed no significant procedural error. United States v. 

Evans, 526 F.3d 155, 161 (4th Cir. 2008). Significant 

procedural errors include “‘failing to calculate (or improperly 

calculating) the Guidelines range, . . . failing to consider the 

[18 U.S.C.] § 3553(a) factors, . . . or failing to adequately 

explain the chosen sentence--including an explanation for any 

deviation from the Guidelines range.’” United States v. Carter, 

564 F.3d 325, 328 (4th Cir. 2009) (quoting Gall, 552 U.S. at 

51). We then consider the substantive reasonableness of the 

sentence, taking into account the totality of the circumstances. 

Gall, 552 U.S. at 51. When reviewing a sentence on appeal, we 

presume a sentence within the properly-calculated Guideline 

range is reasonable. United States v. Allen, 491 F.3d 178, 193 

(4th Cir. 2007). Our review of the record leads us to conclude 

that the district court properly determined the Guidelines range 

and committed no procedural error. Phan’s sentence was at the 

bottom of the Guidelines range and is thus substantively 

reasonable.

In accordance with Anders, we have reviewed the entire 

record in this case and have found no meritorious issues for 

appeal. We therefore affirm the district court’s judgment. 

This court requires that counsel inform Phan in writing of his 

right to petition the Supreme Court of the United States for 
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further review. If Phan 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 Phan.

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