UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4465

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GARY RICHARD LACKEY,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:11-cr-00052-RLV-1)

Submitted: January 11, 2013 Decided: January 17, 2013

Before DUNCAN, DAVIS, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Noell P. Tin, TIN, FULTON, WALKER & OWEN, PLLC, Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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:

Gary Richard Lackey pled guilty pursuant to a plea 

agreement to one count of possession with intent to distribute 

and aiding and abetting the distribution of a Schedule I 

controlled substance, in violation of 18 U.S.C. § 2 (2006); 21 

U.S.C.A. §§ 841(a), 841(b)(1)(B) (West 1999 & Supp. 2012), and 

was sentenced to 120 months in prison. Lackey’s attorney has 

filed a brief in accordance with Anders v. California, 386 U.S. 

738 (1967), stating there are no meritorious grounds for appeal, 

but raising as possible issues for review whether the district 

court complied with Fed. R. Crim. P. 11 when it accepted 

Lackey’s guilty plea and whether Lackey’s sentence is 

reasonable. Lackey filed a pro se supplemental brief in which 

he asserts that counsel rendered ineffective assistance because 

he allegedly failed to explain the ramifications of 21 U.S.C. 

§ 851 (2006) “and it’s [sic] affect on his statutory mandatory 

minimum sentence and/or the Guidelines[.]” The Government has 

declined to file a responsive brief. Finding no error, we 

affirm. 

Because Lackey did not move the district court to 

withdraw his guilty plea, any errors in the Rule 11 hearing are 

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

517, 525-26 (4th Cir. 2002). “To establish plain error, 

[Lackey] must show that an error occurred, that the error was 
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plain, and that the error affected his substantial rights.” 

United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). 

Even if Lackey satisfies these requirements, we retain 

discretion to correct the error, which we should not exercise 

unless the error seriously affects the fairness, integrity or 

public reputation of judicial proceedings. Id.

A review of the record establishes that the district 

court complied with Rule 11’s requirements, ensuring that 

Lackey’s plea was knowing and voluntary, that he understood the 

rights he was giving up by pleading guilty and the sentence he 

faced, and that he committed the offense to which he was 

pleading guilty. Accordingly, we affirm Lackey’s conviction.

After United States v. Booker, 543 U.S. 220 (2005), we 

review a sentence for reasonableness. Gall v. United States, 

552 U.S. 38, 51 (2007). The first step in this review requires 

that we ensure the district court committed no significant 

procedural error. United States v. Evans, 526 F.3d 155, 161 

(4th Cir. 2008). Procedural errors include “failing to 

calculate (or improperly calculating) the Guidelines range, 

treating the Guidelines as mandatory, failing to consider the 

[18 U.S.C.A.] § 3553(a) [(West 2000 & Supp. 2012)] factors, 

selecting a sentence based on clearly erroneous facts, or 

failing to adequately explain the chosen sentence — including an 
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explanation for any deviation from the Guidelines range.” Gall, 

552 U.S. at 51.

“[I]f a party repeats on appeal a claim of procedural 

sentencing error . . . which it has made before the district 

court, we review for abuse of discretion” and will reverse 

unless we can conclude “that the error was harmless.” United 

States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). For 

instance, if “an aggrieved party sufficiently alerts the 

district court of its responsibility to render an individualized 

explanation” by drawing arguments from § 3553 “for a sentence 

different than the one ultimately imposed,” the party 

sufficiently “preserves its claim.” Id. at 578. However, we 

review unpreserved non-structural sentencing errors for plain 

error. Id. at 576-77. 

If, and only if, we find the sentence procedurally 

reasonable can we consider the substantive reasonableness of the 

sentence imposed. United States v. Carter, 564 F.3d 325, 328 

(4th Cir. 2009). This court presumes that a sentence within the 

Guidelines range is reasonable. See United States v. MendozaMendoza, 597 F.3d 212, 217 (4th Cir. 2010) (“[W]e may and do 

treat on appeal a district court’s decision to impose a sentence 

within the Guidelines range as presumptively reasonable.”).

Our review of the record reveals no procedural error 

in Lackey’s sentence. The district court adopted the proper 
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Guidelines range calculation, properly considered the § 3553(a) 

factors, and appropriately explained Lackey’s sentence. 

We next consider the substantive reasonableness of the 

sentence, taking into account the “totality of the 

circumstances, including the extent of any variance from the 

Guidelines range.” Gall, 552 U.S. at 51. Where, as here, the 

Government has not moved for a departure from the Guidelines 

range due to the defendant’s substantial assistance, the 

district court lacks discretion to impose a sentence below the 

statutory minimum. United States v. Robinson, 404 F.3d 850, 862 

(4th Cir. 2005). Moreover, the imposition of a statutory 

mandatory minimum sentence is per se reasonable. United States 

v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008). In Lackey’s 

case, his 120-month sentence was the minimum sentence required 

by statute for the narcotics offense. See 21 U.S.C.A. 

§§ 841(a)(1), (b)(1)(B) (West 1999 & Supp. 2012). Accordingly, 

we find that the sentence is substantively reasonable and 

conclude that the district court committed no reversible error 

in its imposition.*

 * To the extent that Lackey attempts to raise an ineffective 

assistance of counsel claim based on his allegation that counsel 

failed to explain to him the ramifications of § 851, we find 

that ineffective assistance does not conclusively appear on the 

record. See United States v. Benton, 523 F.3d 424, 435 (4th 

Cir. 2008) (holding that an ineffective assistance of counsel 

claim is not cognizable on direct appeal “unless it conclusively 

(Continued)
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In accordance with Anders, we have reviewed the 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 Lackey, in writing, of the right to 

petition the Supreme Court of the United States for further 

review. If Lackey 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 Lackey. 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

 

appears from the record that defense counsel did not provide 

effective representation”) (internal citation omitted).

Although we note that an ineffective assistance of 

counsel claim should generally be raised by a habeas corpus 

motion under 28 U.S.C.A. § 2255 (West Supp. 2012), we intimate 

no view as to the validity or lack of validity of such a claim.