CORRECTED OPINION

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4429

TOMMY LAWSON, a/k/a Man, a/k/a

Black,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Spartanburg.

G. Ross Anderson, Jr., District Judge.

(CR-02-323)

Submitted: November 19, 2003

Decided: December 1, 2003

Corrected Opinion Filed: January 7, 2004

Before WILKINSON and GREGORY, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,

South Carolina, for Appellant. Elizabeth Jean Howard, OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina,

for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Tommy Lawson appeals his conviction, pursuant to a guilty plea,

for possession with intent to distribute and distribution of less than

five grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1)

(2000), and his 151-month sentence. Counsel has filed a brief in

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

two potential issues but stating that, in his view, there are no meritorious grounds for appeal. Lawson was advised of his right to file a pro

se supplemental brief, but did not do so. We affirm. 

Counsel first questions whether the district court properly conducted the plea colloquy pursuant to Fed. R. Crim. P. 11. Counsel

correctly notes that the magistrate judge failed to advise Lawson that

the court at sentencing could depart from the sentencing range calculated under the Sentencing Guidelines,1

 as required by Rule 11(c)(1);2

failed to advise Lawson that his answers to questions asked during the

plea hearing, if false, could later be used against him in a prosecution

for perjury or false statement, as required by Rule 11(c)(5); and failed

to specifically inquire into Lawson’s competency to enter a plea, as

required by Rule 11(d). 

Because Lawson did not object to the plea inquiry or seek to with1U.S. Sentencing Guidelines Manual (2001). 

2Rule 11 was amended effective December 1, 2002. The citations refer

to the pre-amendment version that was in effect at the time Lawson

entered his plea on September 26, 2002. 

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draw his plea in the district court, we review for plain error. United

States v. Vonn, 535 U.S. 55, 74-75 (2002); United States v. Martinez,

277 F.3d 517, 524-25 (4th Cir.), cert. denied, 537 U.S. 899 (2002).

We therefore must determine whether (1) there was error; (2) that was

plain; (3) that affected Lawson’s substantial rights; and (4) if the first

three criteria are met, whether we should exercise our discretion to

notice the error. United States v. Olano, 507 U.S. 725, 732 (1993).

Our review of the record convinces us that, although the magistrate

judge’s failures to inquire as described above constitute error that is

plain, the error did not affect Lawson’s substantial rights. The magistrate judge specifically inquired into whether Lawson desired to plead

guilty and advised him that the decision to plead guilty was his alone.

Moreover, our review of the entire record reveals that Lawson meaningfully participated in the proceedings and there is nothing in the

record indicating any reason to question his competency or the voluntariness of his plea of guilty. 

Next, counsel raises as a potential issue whether the district court

properly established the sentencing range and in sentencing Lawson

to 151 months of imprisonment. Lawson did not object to the presentence report, thus we review for plain error. Our review of the record

leads us to conclude that the district court did not commit plain error

in determining that Lawson qualified for sentencing as a career

offender under § 4B1.1 of the Guidelines, and correctly determined

the applicable sentencing range. To the extent Lawson asserts error

in the district court’s decision to sentence him to a particular term of

imprisonment within the properly calculated Guidelines range, such

an exercise of discretion by the district court is not reviewable. United

States v. Porter, 909 F.2d 789, 794 (4th Cir. 1990). 

As required by Anders, we have examined the entire record and

find no meritorious issues for appeal. Accordingly, we affirm Lawson’s conviction and sentence. 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 thereof was served

on the client. We dispense with oral argument because the facts and

UNITED STATES v. LAWSON 3
legal contentions are adequately presented in the materials before the

court and argument would not aid the decisional process. 

AFFIRMED

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