UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4392

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

KENNETH LEE GARDNER,

Defendant – Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Martin K. Reidinger, 

District Judge. (1:09-cr-00063-MR-DCK-1)

Submitted: July 28, 2011 Decided: August 5, 2011

Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North 

Carolina, for Appellant. Amy Elizabeth Ray, Assistant United 

States Attorney, Asheville, 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Unpublished opinions are not binding precedent in this circuit.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, Kenneth Lee 

Gardner pled guilty to conspiracy to possess with intent to 

distribute 500 grams of cocaine or less, in violation of 21 

U.S.C. § 846 (2006). He was sentenced to 120 months in prison. 

Gardner now appeals. His attorney has filed a brief in 

accordance with Anders v. California, 386 U.S. 738 (1967), 

questioning whether the plea was voluntary and the sentence 

reasonable but stating that there are no meritorious issues for 

appeal. Gardner has filed a pro se brief raising an additional 

issue. We affirm. 

I

After reviewing the transcript of Gardner’s Fed. R. 

Crim. P. 11 proceeding, we conclude that the district court 

fully complied with the Rule and that the guilty plea was 

knowingly and voluntarily entered. Gardner was forty-six when 

he entered his plea, had completed the eleventh grade and earned 

a GED, and had attended classes to learn several trades. He had 

not ingested alcohol or medication other than that prescribed 

for his blood pressure and his mind was clear. He represented 

to the court that he had discussed his case and his plea 

agreement with his attorney, with whose services he was 

satisfied.
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Gardner understood that any false statement might 

subject him to a perjury prosecution. He also understood the 

various trial rights he waived by pleading guilty, the elements 

of the offense, the penalties to which he was subject, and the 

applicability of the sentencing guidelines. Gardner agreed that 

the United States’ summary of the plea agreement was accurate. 

He told the court that his guilty plea was not the result of 

threats, coercion or promises other than those contained in the 

plea agreement. 

II

Our review of the record convinces us that the 120-

month sentence is procedurally and substantive reasonable. See

Gall v. United States, 552 U.S. 38, 51 (2007). Gardner was 

properly found to be a career offender, with a resulting 

advisory Guidelines range of 151-188 months. After hearing 

argument from counsel and Gardner, and considering the 18 U.S.C. 

§ 3553(a) (2006) factors, the court decided that a downward 

variance was warranted, especially in light of Gardner’s minor 

role in the conspiracy and the fact that his career offender 

status was based on convictions from 1988. The court made the 

required individualized assessment in imposing sentence and 

sufficiently stated its reasons for the chosen, variant 
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sentence. See United States v. Carter, 564 F.3d 325, 328 (4th 

Cir. 2009). 

III

In his pro se brief, Gardner contends that, because 

his Guidelines range was calculated based on his being a career 

offender, the Government breached the plea agreement, which 

provided for a base level of 24. He is incorrect. The plea 

agreement, which Gardner signed and which he represented to the 

court that he understood, plainly stated that base level 24 

would apply but that if he were found to be a career offender, 

his Guidelines range might be calculated based on that status.

IV

In accordance with Anders, we have reviewed the entire 

record for 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, then counsel may move in this court for 

leave to withdraw from representation. Counsel’s motion must 

state that a copy was served on the client. We deny the motion 

to disclose grand jury materials and dispense with oral argument 
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because the facts and legal contentions are adequately presented 

in the materials before the court and argument would not aid the 

decisional process. 

AFFIRMED