UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4906

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARIO MONTAY QUILLER, a/k/a Mecca,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. W. Earl Britt, Senior 

District Judge. (5:10-cr-00295-BR-1)

Submitted: August 27, 2012 Decided: September 11, 2012

Before MOTZ, KING, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mary J. Darrow, LAW OFFICE OF MARY JUDE DARROW, Raleigh, North 

Carolina, for Appellant. Jennifer P. May-Parker, Assistant 

United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Mario Montay Quiller pled guilty pursuant to a plea 

agreement to one count of conspiracy to distribute and possess 

with intent to distribute more than fifty grams of cocaine base,

in violation of 21 U.S.C. § 846 (2006), and one count of being a 

felon in possession of a firearm, in violation of 18 U.S.C. 

§§ 922(g)(1), 924 (2006). In exchange for his plea the 

Government dismissed the remaining six charges. On appeal, 

counsel has submitted a brief pursuant to Anders v. California, 

386 U.S. 738 (1967), asserting there are no meritorious 

arguments for appeal. Quiller filed a pro se supplemental 

brief, asserting that the Rule 11 hearing was flawed because he 

was not informed of the correct minimum or maximum sentence 

under the Fair Sentencing Act of 2010, Pub.L. No. 111–220, 124 

Stat. 2372 (“FSA”). The Government did not file a brief.* We 

affirm.

 * In the plea agreement, Quiller waived his right to appeal 

whatever sentence was imposed. However, the Government has 

elected not to seek enforcement of the waiver. It is this 

court’s policy not to raise the issue sua sponte. United 

States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005) (citing 

United States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000)); 

see United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 

2007) (stating that, if Anders brief is filed in case with 

appeal waiver, the Government’s failure to respond “allow[s] 

this court to perform the required Anders review”).
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After reviewing the record, we conclude that Quiller’s 

Rule 11 hearing was sufficient and proper. At the time that 

Quiller pled guilty, which was after the FSA’s effective date, 

the FSA was not being applied retroactively to those defendants 

whose criminal conduct occurred prior to the enactment of the 

FSA but were sentenced after the FSA’s effective date. At 

sentencing, Quiller’s counsel argued that the reduced statutory 

sentence contained in the FSA should apply to Quiller. In light 

of the Attorney General’s revised view that the FSA should apply 

retroactively, the district court agreed. Quiller was thus 

exposed to a maximum statutory sentence of forty years instead 

of life.

While the appeal was pending, the Supreme Court ruled 

in Dorsey v. United States, 132 S. Ct. 2321, 2335 (2012), that 

the FSA was applicable to persons in Quiller’s situation: the 

criminal conduct occurred prior to the FSA’s effective date but 

sentencing occurred after the Act’s effective date.

Needless to say, Quiller, who successfully argued at 

sentencing for the FSA’s reduced statutory penalties, did not 

assert at any time before the imposition of sentence that the 

Rule 11 hearing was flawed due to misinformation about the 

maximum sentence. Accordingly, review is for plain error. See

United States v. Martinez, 277 F.3d 517, 527 (4th Cir. 2002). 

Under plain error review, Quiller must show there was error, 
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that error was plain, and that error was material or affected 

his substantial rights. Even if he satisfies these conditions, 

the court will use its discretion and correct the error only if 

the error seriously affects the fairness, integrity or public 

reputation of judicial proceedings. Id. at 524. Additionally, 

to show that a Rule 11 violation was plain error, Quiller must 

demonstrate that he would not have entered the plea. Id. at 

532.

We conclude that Quiller’s substantial rights were not 

affected. By virtue of pleading guilty and not proceeding to 

trial, Quiller received the benefit of the dismissal of six 

counts and a reduced offense level based on acceptance of 

responsibility. Quiller, who had an extensive criminal history, 

also faced the possibility of a life sentence for the firearm 

conviction if it was found that he was an armed career criminal. 

Accordingly, we conclude there was no plain error and affirm 

Quiller’s convictions.

This court reviews a sentence for reasonableness, 

applying an abuse of discretion standard. Gall v. United 

States, 552 U.S. 38, 51 (2007); United States v. Layton, 564 

F.3d 330, 335 (4th Cir. 2009). In so doing, the court first 

examines the sentence for “significant procedural error,” 

including “failing to calculate (or improperly calculating) the 

Guidelines range, treating the Guidelines as mandatory, failing 
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to consider the § 3553(a) factors, selecting a sentence based on 

clearly erroneous facts, or failing to adequately explain the 

chosen sentence.” Gall, 552 U.S. at 51. The court then 

considers the substantive reasonableness of the sentence, taking 

into account the totality of the circumstances. United 

States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). 

If the sentence is within the Guidelines range, this court 

presumes on appeal that the sentence is reasonable. United 

States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see Rita v. 

United States, 551 U.S. 338, 346-56 (2007) (permitting appellate 

presumption of reasonableness for within-Guidelines sentence).

We conclude that the district court properly 

determined the Guidelines sentence. With respect to the 

district court’s explanation of the sentence, “[r]egardless of 

whether the district court imposes an above, below, or withinGuidelines sentence, it must place on the record an 

individualized assessment based on the particular facts of the 

case before it.” United States v. Carter, 564 F.3d 325, 330 

(4th Cir. 2009) (internal quotation marks omitted); see Gall, 

552 U.S. at 50. The reasons articulated for a given sentence 

need not be “couched in the precise language of [18 U.S.C.] 

§ 3553(a),” so long as the “reasons can be matched to a factor 

appropriate for consideration . . . and [are] clearly tied [to 

the defendant’s] particular situation.” United States v. 
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Moulden, 478 F.3d 652, 658 (4th Cir. 2007). The district 

court’s explanation need not be extensive, so long as this court 

is satisfied “‘that the district court has considered the 

parties’ arguments and has a reasoned basis for exercising its 

own legal decisionmaking authority.’” United States v. Engle, 

592 F.3d 495, 500 (4th Cir.) (quoting Rita, 551 U.S. at 356 

(alterations omitted)), cert. denied, 131 S. Ct. 165 (2010).

We have reviewed the sentencing transcript and the 

district court’s statement of reasons and conclude that the 

court considered the arguments raised by the parties and adopted 

the Government’s position as acceptable. In so doing, the court 

acknowledged its inclination to sentence Quiller to the high end 

of the Guidelines and yet sentenced Quiller to the middle of the 

sentencing range, consistent with the Government’s request.

Accordingly, we conclude that Quiller’s sentence was 

both procedurally and substantively reasonable. United 

States v. Wright, 594 F.3d 259, 267-68 (4th Cir.), cert. denied, 

131 S. Ct. 507 (2010); see Rita, 551 U.S. at 347 (upholding 

rebuttable presumption of reasonableness for within-Guidelines 

sentence).

In accordance with Anders, we have reviewed the record 

in this case and have found no meritorious issues for appeal. 

We therefore affirm Quiller’s convictions and sentence. This 

court requires counsel inform Quiller, in writing, of the right 
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to petition the Supreme Court of the United States for further 

review. If Quiller 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 Quiller. 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