UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4149

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BOBBY JOE BROWN, a/k/a Bobby Joe Brown, Jr.,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. Thomas D. Schroeder, 

District Judge. (1:08-cr-00359-TDS-1)

Submitted: August 26, 2010 Decided: September 9, 2010

Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Daniel K. Dorsey, Washington, D.C., for Appellant. Robert 

Albert Jamison Lang, Assistant United States Attorney, WinstonSalem, North Carolina, Anna Mills Wagoner, United States 

Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Bobby Joe Brown pled guilty to two counts of 

carjacking and aiding and abetting such conduct, in violation of 

18 U.S.C. §§ 2119(1), 2 (2006), and discharging a firearm 

during and in relation to a crime of violence and aiding and 

abetting such conduct, in violation of 18 U.S.C. 

§§ 924(c)(1)(A)(iii), 2 (2006). Counsel filed a brief under 

Anders v. California, 386 U.S. 738 (1967) certifying there are 

no meritorious issues for appeal but raising for the court’s 

consideration whether the district court complied with Rule 11 

and whether the upward variance for Count One was reasonable. 

Brown was given the opportunity to file a pro se supplemental 

brief, but chose not to do so. The Government did not file a 

brief. We affirm.

Because Brown did not move to withdraw his guilty plea 

in the district court or raise any objections during the Rule 11 

plea colloquy, the plea colloquy is reviewed for plain error. 

United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002); 

United States v. General, 278 F.3d 389, 393 (4th Cir. 2002). We 

conclude the district court fully complied with the Rule 11 

requirements in accepting Brown’s guilty plea. Brown stated 

that he was not under the influence of alcohol or drugs, that he 

reviewed his case and the charges against him with counsel, and 

that he was satisfied with counsel’s services. The court 
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explained the charges against Brown and advised him of the 

penalties, the effect of supervised release, and the 

applicability of the advisory Guidelines. Brown indicated he 

understood the consequences of his guilty plea and the rights he 

was giving up by entering the plea, including his right to a 

jury trial and his rights at trial. Finally, the district court 

ensured there was a factual basis underlying Brown’s plea and 

that the plea was freely and voluntarily entered. Finding no 

error with the Rule 11 hearing, we affirm the conviction. 

This court reviews Brown’s sentence “under a 

deferential abuse-of-discretion standard.” Gall v. United 

States, 552 U.S. 38, 41 (2007). In conducting this review, the 

court “must first ensure that the district court committed no 

significant procedural error, such as failing to calculate (or 

improperly calculating) the Guidelines range, treating the 

Guidelines as mandatory, failing to consider the [18 U.S.C.] 

§ 3553(a) [(2006)] factors, selecting a sentence based on 

clearly erroneous facts, or failing to adequately explain the 

chosen sentence[.]” Id. at 51. “When rendering a sentence, the 

district court must make an individualized assessment based on 

the facts presented,” applying the “relevant § 3553(a) factors 

to the specific circumstances of the case before it.” United 

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal 

quotation marks omitted). The court must also “state in open 
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court the particular reasons supporting its chosen sentence” and 

“set forth enough to satisfy” this Court that it has “considered 

the parties’ arguments and has a reasoned basis for exercising 

[its] own legal decision making authority.” Id. (internal 

quotation marks omitted). 

An upward variance is procedurally sound if the 

district court adequately explains the variance by reference to 

the § 3553(a) sentencing factors. See United States v. Grubbs, 

585 F.3d 793, 804-05 (4th Cir. 2009).

Once this court has determined that the sentence is 

free of procedural error, it must consider the substantive 

reasonableness of the sentence, “tak[ing] into account the 

totality of the circumstances, including the extent of any 

variance from the Guidelines range.” Gall, 552 U.S. at 51. If 

the sentence is within the appropriate Guidelines range, this 

court applies a presumption on appeal that the sentence is 

reasonable. See United States v. Go, 517 F.3d 216, 218 (4th 

Cir. 2008). 

We find the reasons for the upward variance were

sufficiently explained by the district court. The court 

referenced several facts regarding the incident that contributed 

to the heinous nature of the offense but were not taken into 

account by the Sentencing Guidelines. We also find, taking into 

account the totality of the circumstances and the extent of the 
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variance that the sentence for Count One was substantively 

reasonable. Likewise, we find the sentences for Count Two and 

Count Three were procedurally and substantively reasonable. 

Accordingly, we affirm the sentence. 

In accordance with Anders, we have reviewed the record 

in this case and have found no meritorious issues for appeal. 

We therefore affirm Brown’s convictions and sentence. This 

court requires that counsel inform Brown, in writing, of the 

right to petition the Supreme Court of the United States for 

further review. If Brown 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 Brown. 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