UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-4253

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DUANE EDWARD LEE,

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. (1:17-cr-00307-NCT-1)

Submitted: October 23, 2018 Decided: October 25, 2018

Before NIEMEYER, KING, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Peter M. Wood, LAW OFFICE OF PETER WOOD, Raleigh, North Carolina, for 

Appellant. John Mcrae Alsup, Assistant United States Attorney, OFFICE OF THE 

UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Duane Edward Lee pled guilty to distribution of cocaine base, in violation of 21 

U.S.C. § 841(a)(1), (b)(1(C) (2012). The district court sentenced Lee to 70 months’ 

imprisonment, the bottom of the 70- to 87-month advisory Sentencing Guidelines range. 

On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 

(1967), stating that there are no meritorious grounds for appeal, but questioning the 

district court’s compliance with Rule 11 of the Federal Rules of Criminal Procedure and 

the reasonableness of the sentence, and asking the court to review the record for any 

prosecutorial misconduct or ineffective assistance of counsel. Lee was advised of his 

right to file a pro se supplemental brief but has not filed one. The Government declined 

to file a brief.

Because Lee did not move in the district court to withdraw his guilty plea, we 

review the guilty plea hearing for plain error. United States v. Martinez, 277 F.3d 517, 

525 (4th Cir. 2002). “To establish plain error, [Lee] 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). Even if Lee satisfies these 

requirements, “correction of the error remains within our discretion, which we should not 

exercise . . . unless the error seriously affect[s] the fairness, integrity or public reputation 

of judicial proceedings.” Id. (citation and internal quotation marks omitted). Our review 

of the record leads us to conclude that the district court substantially complied with Rule 

11 in accepting Lee’s guilty plea, which Lee entered knowingly and voluntarily.
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Turning to Lee’s sentence, we review a sentence for procedural and substantive 

reasonableness under a deferential abuse of discretion standard. Gall v. United States, 

552 U.S. 38, 51 (2007). We must first ensure that the district court did not commit any 

“significant procedural error,” such as failing to properly calculate the applicable 

Guidelines range, failing to consider the 18 U.S.C. § 3553(a) (2012) sentencing factors, 

or failing to adequately explain the sentence. Id. If we find the sentence procedurally 

reasonable, we then consider its substantive reasonableness. Id. at 328. We presume on 

appeal that a sentence within the properly calculated Guidelines range is substantively 

reasonable. United States v. Vinson, 852 F.3d 333, 357 (4th Cir. 2017). “That 

presumption can only be rebutted by showing that the sentence is unreasonable when 

measured against the . . . § 3553(a) factors.” Id. at 357-58 (internal quotation marks 

omitted).

Upon review, we discern no procedural or substantive sentencing error by the 

district court. The district court correctly calculated Lee’s advisory Guidelines range, 

heard argument from counsel, provided Lee an opportunity to allocute, and considered 

the relevant § 3553(a) sentencing factors. We have reviewed the record and conclude 

that Lee’s within-Guidelines sentence is both procedurally and substantively reasonable.

In accordance with Anders, we have reviewed the record in this case and have 

found no prosecutorial misconduct, no ineffectiveness of counsel,* and no meritorious 

 * We generally do not address claims of ineffective assistance of trial counsel on 

direct appeal unless an attorney’s ineffectiveness conclusively appears on the face of the 

record. United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). Instead, such claims 

(Continued)
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issues for appeal. Accordingly, we affirm the judgment of the district court. This court 

requires that counsel inform Lee, in writing, of the right to petition the Supreme Court of 

the United States for further review. If Lee 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 Lee. We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before this court and argument 

would not aid the decisional process.

AFFIRMED

 

should be raised, if at all, in a motion brought pursuant to 28 U.S.C. § 2255 (2012), in 

order to permit sufficient development of the record. United States v. Baptiste, 596 F.3d 

214, 216 n.1 (4th Cir. 2010).