UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4485

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, 

v. 

JOHNNY ARTHUR BYRD, 

Defendant - Appellant. 

Appeal from the United States District Court for the District of 

South Carolina, at Charleston. Richard M. Gergel, District 

Judge. (2:12-cr-00797-RMG-1) 

Submitted: January 9, 2014 Decided: January 17, 2014

Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior 

Circuit Judge. 

Affirmed by unpublished per curiam opinion. 

Beattie B. Ashmore, BEATTIE B. ASHMORE, P.A., Greenville, South 

Carolina, for Appellant. Nathan S. Williams, Assistant United 

States Attorney, Charleston, South Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
2

PER CURIAM: 

Johnny Arthur Byrd pled guilty pursuant to a plea 

agreement to one count of possession with intent to distribute 

marijuana and aiding and abetting, in violation of 18 U.S.C. 

§§ 2, 841(a)(1), (b)(1)(D) (2012), and one count of using and 

carrying a firearm during and in relation to and possessing a 

firearm in furtherance of a drug trafficking crime, in violation 

of 18 U.S.C. §§ 2, 924(c)(1) (2012). The district court 

calculated Byrd’s Guidelines range on the marijuana count at 

twenty-seven to thirty-three months’ imprisonment and Guidelines 

sentence on the firearm count at a consecutive term of sixty 

months’ imprisonment, U.S. Sentencing Guidelines Manual (2012), 

and sentenced Byrd to thirty-three months’ imprisonment on the 

marijuana count and a consecutive term of sixty months’ 

imprisonment on the firearm count. 

On appeal, counsel has filed a brief pursuant to 

Anders v. California, 386 U.S. 738 (1967), stating that there 

are no meritorious issues for appeal, but raising as issues for 

review whether the district court reversibly erred in accepting 

Byrd’s guilty plea and abused its discretion in imposing 

sentence. Byrd was informed of his right to file a pro se 

supplemental brief, but he has not done so. The Government 

declined to file a brief and does not seek to enforce the appeal 

waiver in Byrd’s plea agreement. We affirm. 
3

Because Byrd did not move in the district court to 

withdraw his guilty plea, the adequacy of the Fed. R. Crim. P. 

11 hearing is reviewed for plain error only. United States v. 

Martinez, 277 F.3d 517, 524–26 (4th Cir. 2002). To demonstrate 

plain error, a defendant must show: (1) there was error; (2) the 

error was plain; and (3) the error affected his substantial 

rights. United States v. Olano, 507 U.S. 725, 732 (1993). 

In the guilty plea context, a defendant meets his burden to 

establish that a plain error affected his substantial rights by 

showing a reasonable probability that he would not have pled 

guilty but for the district court’s Rule 11 omissions. 

United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009). 

Our review of the transcript of the guilty plea 

hearing leads us to conclude that the district court 

substantially complied with the mandates of Rule 11 in accepting 

Byrd’s guilty plea and that the court’s omissions did not affect 

Byrd’s substantial rights. Critically, the transcript reveals 

that the district court ensured that the plea was supported by 

an independent basis in fact, and that Byrd entered the plea 

knowingly and voluntarily with an understanding of the 

consequences. United States v. DeFusco, 949 F.2d 114, 116, 120 

(4th Cir. 1991). Accordingly, we discern no plain error in the 

district court’s acceptance of Byrd’s guilty plea. 
4

Turning to Byrd’s sentence, we review it for 

reasonableness “under a deferential abuse-of-discretion 

standard.” Gall v. United States, 552 U.S. 38, 41, 51 (2007). 

This review entails appellate consideration of both the 

procedural and substantive reasonableness of the sentence. 

Id. at 51. In determining procedural reasonableness, we 

consider whether the district court properly calculated the 

defendant’s advisory Guidelines range, gave the parties an 

opportunity to argue for an appropriate sentence, considered the

18 U.S.C. § 3553(a) (2012) factors, selected a sentence based on 

clearly erroneous facts, and sufficiently explained the selected 

sentence. Id. at 49–51. 

If the sentence is free of “significant procedural 

error,” we review it for substantive reasonableness, “tak[ing] 

into account the totality of the circumstances.” Id. at 51. 

If the sentence is within the properly calculated Guidelines 

range, we apply a presumption on appeal that the sentence is 

substantively reasonable. United States v. Susi, 674 F.3d 278, 

289 (4th Cir. 2012). Such a presumption is rebutted only if the 

defendant shows “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 

omitted). 
5

In this case, the district court correctly calculated 

and considered the advisory Guidelines range and sentence and 

heard argument from counsel and allocution from Byrd. The court 

explained that the sentence of ninety-three months’ imprisonment 

was warranted in light of the nature and circumstances of Byrd’s 

offense conduct, his history and characteristics, and the need 

for the sentence to reflect the seriousness of Byrd’s offense 

conduct, to promote respect for the law, to provide just 

punishment, and to protect the public from further crimes by 

Byrd. Byrd does not offer any grounds to rebut the presumption 

on appeal that his within-Guidelines sentence is substantively 

reasonable. Accordingly, we conclude that the district court 

did not abuse its discretion in sentencing Byrd. 

Finally, in accordance with Anders, we have reviewed 

the remainder of 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 Byrd, 

in writing, of the right to petition the Supreme Court of the 

United States for further review. If Byrd 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 Byrd. 
6

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