UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-5154

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

LAVON RICHARD CALDWELL, a/k/a Jamal Garrison, 

 Defendant - Appellant. 

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Richard D. Bennett, District Judge. 

(1:07-cr-00293-RDB-2) 

Submitted: June 10, 2009 Decided: July 7, 2009 

Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Gary E. Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC, Baltimore, 

Maryland, for Appellant. Paul E. Budlow, OFFICE OF THE UNITED 

STATES ATTORNEY, Tonya Kelly Kowitz, Assistant United States 

Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

 Lavon Richard Caldwell appeals from the sixty-one 

month sentence imposed following his guilty plea, pursuant to a 

written plea agreement, to one count of conspiracy to commit 

bank fraud, in violation of 18 U.S.C. § 1349 (2006) (Count 1), 

and one count of aggravated identity theft, in violation of 18 

U.S.C. §§ 2, 1028A(a)(1) (2006) (Count 3). Caldwell’s counsel 

filed a brief pursuant to Anders v. California, 386 U.S. 738 

(1967), asserting that there are no meritorious grounds for 

appeal, but questioning the validity of Caldwell’s guilty plea 

and whether Caldwell’s sentence is reasonable. Caldwell filed a 

pro se supplemental brief, alleging that his guilty plea is 

invalid because of trial counsel’s ineffective assistance and 

that his sentence is unreasonable because the amount of total 

loss and his criminal history points were incorrectly 

calculated. The Government has not filed a brief. Finding no 

error, we affirm. 

I. 

 Counsel first questions the issue of whether 

Caldwell’s guilty plea was invalid, but concludes that it was 

knowing and voluntary. Prior to accepting a defendant’s guilty 

plea, Federal Rule of Criminal Procedure 11(b)(1) (“Rule 11”) 

requires the district court to address the defendant in open 

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court and ensure he understands the following: the nature of the 

charge against him; any mandatory minimum sentence; the maximum 

possible sentence, including imprisonment, fine, and term of 

supervised release; the mandatory special assessment; the 

applicability of the advisory Guidelines; his right to an 

attorney at all stages of the proceedings; his right to plead 

not guilty; his right to a jury trial with the assistance of 

counsel; his right to confront and cross-examine witnesses; his 

right to testify on his own behalf and his right against selfincrimination; the court’s authority to order restitution; any 

applicable forfeiture; and the government’s right to use any of 

his statements under oath in a perjury prosecution. Fed. R. 

Crim. P. 11(b)(1). The district court must also inform the 

defendant that he may not withdraw his guilty plea once the 

court accepts it and imposes a sentence. Fed. R. Crim. P. 

11(e). Additionally, the district court must “determine that 

there is a factual basis for the plea.” Fed. R. Crim. P. 

11(b)(3). Finally, the district court must ensure the 

defendant’s plea was voluntary and did not come about as a 

result of force, threats, or promises. Fed. R. Crim. P. 

11(b)(2). 

 Because Caldwell did not move to withdraw his guilty 

plea in the district court or raise any objections during the 

Rule 11 colloquy, the plea colloquy is reviewed for plain error. 

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United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002); 

United States v. General, 278 F.3d 389, 393 (4th Cir. 2002). To 

demonstrate plain error, Caldwell must show that an “error 

occurred, that the error was plain, and that the error affected 

his substantial rights.” General, 278 F.3d at 393 (internal 

quotation marks and citation omitted). An error is plain if it 

is “clear” or “obvious.” United States v. Olano, 507 U.S. 725, 

734 (1993). A defendant’s substantial rights are affected if 

the Court determines that the error “influenced the defendant’s 

decision to plead guilty and impaired his ability to evaluate 

with eyes open the direct attendant risks of accepting criminal 

responsibility.” United States v. Goins, 51 F.3d 400, 402-03 

(4th Cir. 1995) (internal quotation marks and citation omitted); 

see also Martinez, 277 F.3d at 532 (holding that a defendant 

must demonstrate that he would not have pled guilty but for the 

error). 

 Counsel makes an argument that Caldwell was 

incorrectly informed of his rights because the district court 

stated that the two year sentence for Count 3 ran concurrent to 

the sentence for Count 1. However, it is clear the district 

court misspoke, as the judge immediately explained that “you 

will have two years in addition to whatever the sentence is for 

Count 1.” Moreover, the written plea agreement Caldwell signed 

stated that the sentence for Count 3 would run consecutive to 

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any sentence for Count 1. Counsel does not allege any further 

errors in the district court’s Rule 11 colloquy and our review 

of the record reveals that the district court substantially 

complied with the mandates of Rule 11 in accepting Caldwell’s 

guilty plea. 

II. 

 Counsel next challenges the reasonableness of 

Caldwell’s sentence.* Consistent with United States v. Booker, 

543 U.S. 220 (2005), the district court is required to follow a 

multi-step process at sentencing. First, it must calculate the 

proper sentencing range prescribed by the Guidelines. Gall v. 

United States, 552 U.S. 32, ___, 128 S. Ct. 586, 596 (2007); 

see also United States v. Abu Ali, 528 F.3d 210, 260 (4th Cir. 

2008). It must then consider that range in light of the 

parties’ arguments regarding the appropriate sentence and the 

factors set out in 18 U.S.C. § 3553(a) (2006), before imposing 

its sentence. Gall, 552 U.S. at ___, 128 S. Ct. at 596; 

see also Abu Ali, 528 F.3d at 260. 

 *

 In the plea agreement, Caldwell waived his right to 

appeal a sentence within the advisory Guidelines range for an 

adjusted offense level of 20 or lower on Count 1 plus two years’ 

imprisonment on Count 3. However, the Government failed to 

assert the waiver as a bar to the appeal. Therefore, we may 

undertake an Anders review. United States v. Poindexter, 492 

F.3d 263, 271 (4th Cir. 2007). 

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 We review the district court’s sentence for abuse of 

discretion. Gall, 552 U.S. at ___, 128 S. Ct. at 591. First, 

we must ensure the district court did not commit any 

“significant procedural error,” such as failing to consider the 

18 U.S.C. § 3553(a) factors or failing to adequately explain the 

sentence. Id. at 597. The district court is not required to 

“robotically tick through § 3553(a)’s every subsection.” United 

States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). However, 

the district court must “place on the record an individualized 

assessment based on the particular facts of the case before it. 

This individualized assessment need not be elaborate or lengthy, 

but it must provide a rationale tailored to the particular case 

at hand and adequate to permit meaningful appellate review.” 

United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) 

(internal quotation marks, footnote, and citations omitted). 

This is true even when the district court sentences a defendant 

within the applicable Guidelines range. Id. 

 Once we have determined there is no procedural error, 

we must consider the substantive reasonableness of the sentence, 

taking into account the totality of the circumstances. Gall, 

552 U.S. at ___, 128 S. Ct. at 597. If the sentence imposed is 

within the appropriate Guidelines range, on appeal it is 

presumptively reasonable. United States v. Go, 517 F.3d 216, 

218 (4th Cir. 2008). The presumption may be rebutted by a 

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showing “that the sentence is unreasonable when measured against 

the § 3553(a) factors.” United States v. Montes-Pineda, 445 

F.3d 375, 379 (4th Cir. 2006) (internal quotation marks and 

citation omitted). 

 Our review of the record reveals that the district 

court properly calculated Caldwell’s advisory Guidelines range 

of thirty-seven to forty-six months on Count 1. Additionally, 

the district court provided a lengthy explanation of the 

sentence, noting that the nature and circumstances of the 

offense were “egregious” and that there were numerous victims 

and a large amount of money involved. The district court also 

viewed Caldwell as “probably the second most culpable person in 

this entire ring,” noting that Caldwell did not appear to 

recognize his level of wrongdoing. The record is also clear 

that the district court considered the arguments of both 

attorneys and Caldwell’s allocution prior to sentencing 

Caldwell. Therefore, we find that the district court performed 

an adequate individualized assessment and committed no 

procedural error. 

 Furthermore, Caldwell’s within-Guidelines sentence is 

presumptively reasonable on appeal and Caldwell has not rebutted 

that presumption. Therefore, we find that the district court 

committed no substantive error in sentencing Caldwell. 

Accordingly, the district court did not abuse its discretion in 

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sentencing Caldwell to thirty-seven months’ imprisonment on 

Count 1 and a consecutive term of twenty-four months’ 

imprisonment on Count 3. 

III. 

 In his pro se supplemental brief, Caldwell alleges 

that his guilty plea is invalid because of the ineffective 

assistance of counsel. A defendant may raise a claim of 

ineffective assistance of counsel “on direct appeal if and only 

if it conclusively appears from the record that his counsel did 

not provide effective assistance.” United States v. Martinez, 

136 F.3d 972, 979 (4th Cir. 1998). To prove ineffective 

assistance, the defendant must show two things: (1) “that 

counsel’s representation fell below an objective standard of 

reasonableness” and (2) “that there is a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Strickland v. 

Washington, 466 U.S. 668, 688, 694 (1984). In the context of a 

guilty plea, “the defendant must show that there is a reasonable 

probability that, but for counsel’s errors, he would not have 

pleaded guilty and would have insisted on going to trial.” 

Hill v. Lockhart, 474 U.S. 52, 59 (1985). Our review of the 

record reveals no conclusive evidence that Caldwell’s counsel 

did not provide effective assistance. We have examined the 

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remainder of Caldwell’s pro se claims and find them to lack 

merit. 

 In accordance with Anders, we have reviewed the record 

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

We therefore affirm Caldwell’s conviction and sentence. This 

court requires that counsel inform Caldwell, in writing, of his 

right to petition the Supreme Court of the United States for 

further review. If Caldwell requests that a petition be filed, 

but counsel believes that such a petition would be frivolous, 

counsel may move in this court for leave to withdraw from 

representation. Counsel’s motion must state that a copy thereof 

was served on Caldwell. We dispense with oral argument because 

the facts and legal conclusions are adequately presented in the 

materials before the court and argument would not aid the 

decisional process. 

 AFFIRMED