UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4718

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GILBERT HARRIS, JR., a/k/a Butchie Huell,

a/k/a Butchie,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Florence. Terry L. Wooten, District Judge.

(CR-04-762)

Submitted: August 18, 2006 Decided: September 13, 2006

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Ray Coit Yarborough, Jr., Florence, South Carolina, for Appellant.

Arthur Bradley Parham, OFFICE OF THE UNITED STATES ATTORNEY,

Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
The defects include lack of venue, Fourth Amendment 1

violations, improprieties in the grand jury proceedings, and

insufficient evidence upon which to convict.

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PER CURIAM:

Pursuant to an amended plea agreement, Gilbert Harris,

Jr., pled guilty to conspiracy to possess with intent to distribute

fifty grams or more of cocaine base and 500 grams or more of

cocaine, in violation of 21 U.S.C. § 846 (2000), and using and

carrying a firearm during a drug trafficking crime, in violation of

18 U.S.C. § 924(c)(1) (2000). The district court sentenced Harris

to 140 months for the drug offense, to be followed by sixty months

for the firearm offense. Harris appeals. His attorney has filed

a brief in accordance with Anders v. California, 386 U.S. 738

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

Harris has filed a pro se supplemental brief. We affirm. 

In his pro se brief, Harris asserts a number of defects1

in the proceedings. It is well established, however, that a valid

guilty plea waives all antecedent nonjurisdictional defects.

Tollett v. Henderson, 411 U.S. 258, 267 (1973). To the extent that

Harris attacks the voluntary and intelligent character of his plea,

which Tollett permits a defendant to do on appeal, see id., we find

Harris’ claims to be without merit. Our review of the record

discloses substantial compliance with Fed. R. Crim. P. 11. At

arraignment, the district court assured itself that the plea was

informed and knowing. Harris was thirty-seven, had some post-
In his pro se brief, Harris contends that he attempted to 2

withdraw his plea at sentencing. However, he made this request

only once--when expressing his concern that guns and drugs seized

from his residence pursuant to a search warrant would affect his

sentence. A fair reading of the sentencing transcript discloses

that the district court correctly treated the matter not as a

request to withdraw the plea, but as an objection to the

presentence report (PSR). After receiving assurances that the guns

and drugs recovered from the residence had no impact on the

sentence, Harris informed the court that he had no further

objections to the PSR.

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secondary education, had never been treated for mental illness or

substance abuse, and was not under the influence of drugs or

alcohol. He represented to the court that, other than the plea

agreement, no one had promised him anything in return for his plea.

Nor had anyone threatened him. Harris was fully aware of the

charges against him and the penalties he faced. He expressed

complete satisfaction with his attorney. Finally, Harris admitted

his guilt, and the factual basis for the plea disclosed that there

was ample evidence to convict Harris of each offense.

We conclude that Harris entered an intelligent and

knowing guilty plea. Therefore, under Tollett, Harris’ plea 2

waived his right to raise antecedent nonjurisdictional defects on

appeal.

Harris contends that his sentence violates United

States v. Booker, 543 U.S. 220 (2005). In determining a sentence

post-Booker, a sentencing court is no longer bound by the range

prescribed by the sentencing guidelines. United States v. Hughes,

401 F.3d 540, 546 (4th Cir. 2005). Instead, sentencing courts must
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consider both the properly calculated guideline range as well as

the factors set forth at 18 U.S.C.A. § 3553(a)(1) (West 2000 &

Supp. 2006). United States v. Green, 436 F.3d 449, 455-56 (4th

Cir.), cert. denied, 126 S. Ct. 2309 (2006). A post-Booker

sentence must be “within the statutorily prescribed range and . . .

reasonable.” Hughes, 401 F.3d at 546-47 (citations omitted). “[A]

sentence within the properly calculated Guidelines range . . . is

presumptively reasonable.” Green, 436 F.3d at 457 (internal

quotation marks and citation omitted).

Harris was statutorily subject to between ten years and

life in prison for the drug offense, see 21 U.S.C. § 841(b)(1)(A)

(2000), and a consecutive sentence of at least five years for the

firearm offense, see 18 U.S.C. § 924(c). His properly calculated

guideline range for the drug offense was 135-168 months. In

imposing sentence, the court took into account “the history and

character of the defendant,” see 18 U.S.C.A. § 3553(a)(1),

including Harris’ work history, age, and lack of criminal past. We

conclude that a sentence of 140 months for the drug offense, to be

followed by a sixty-month sentence for the firearm offense, was

reasonable.

In accordance with Anders, we have reviewed the entire

record for any meritorious issues and have found none.

Accordingly, we affirm. This court requires counsel to inform his

client, in writing, of his right to petition the Supreme Court of
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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 this court for leave to

withdraw from representation. Counsel’s motion must state that a

copy of the motion was served on the client. We deny the motions

to enlarge the record and for a writ of mandamus and dispense with

oral argument because the facts and legal contentions are

adequately set forth in the materials before the court and argument

would not aid the decisional process.

AFFIRMED