UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4994

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, 

v. 

JOSHUA DYLAN BENNETT, 

Defendant - Appellant. 

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. Catherine C. Eagles, 

District Judge. (1:13-cr-00186-CCE-3) 

Submitted: October 3, 2014 Decided: October 9, 2014

Before SHEDD, WYNN, and DIAZ, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Josiah J. Corrigan, Jacob P. Warner, PERRY, PERRY & PERRY, 

Kinston, North Carolina, for Appellant. Graham Tod Green, 

Assistant United States Attorney, Greensboro, North Carolina, 

for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Joshua Dylan Bennett pled guilty pursuant to a plea 

agreement to conspiracy to distribute fifty grams or more of 

methamphetamine and to possess pseudoephedrine knowing and 

having reasonable cause to believe it would be used to 

manufacture methamphetamine, in violation of 21 U.S.C. 

§§ 841(b)(1)(B), (c)(2), 846 (2012). The district court 

calculated Bennett’s Guidelines range at sixty to seventy-one 

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

and, after granting a downward variance for substantial 

assistance to the Government, sentenced Bennett to forty-five 

months’ imprisonment. 

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 

Bennett’s guilty plea and abused its discretion in imposing 

sentence. Counsel also questions whether trial counsel rendered 

ineffective assistance at sentencing. Bennett 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. We affirm. 

Because Bennett 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. 
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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 

Bennett’s guilty plea and that the court’s omissions did not 

affect Bennett’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 Bennett

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 Bennett’s guilty 

plea. 

Turning to Bennett’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). 
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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 below 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, 

289-90 (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). 

In this case, the district court correctly calculated 

and considered the advisory Guidelines range, heard argument 

from counsel, and afforded Bennett the opportunity to allocute. 

The court explained that the forty-five-month sentence was 
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warranted in light of the nature and circumstances of Bennett’s 

offense conduct and his history and characteristics. 18 U.S.C. 

§ 3553(a)(1). Bennett does not offer any grounds to rebut the 

presumption on appeal that his below-Guidelines sentence is 

substantively reasonable. Accordingly, we conclude that the 

district court did not abuse its discretion in sentencing 

Bennett. 

Bennett also questions whether trial counsel rendered 

ineffective assistance at sentencing. After review of the 

record, we find this claim inappropriate for resolution on 

direct appeal. Because the record does not conclusively 

establish ineffectiveness of counsel, Bennett must assert such a 

claim, if at all, in a motion pursuant to 28 U.S.C § 2255 

(2012). United States v. King, 119 F.3d 290, 295 (4th Cir. 

1997). 

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 

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

of the United States for further review. If Bennett requests 

that a petition be filed, but counsel believes that such a 

petition would be frivolous, then counsel may move in this court 
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for leave to withdraw from representation. Counsel’s motion 

must state that a copy thereof was served on Bennett. 

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