UNITED STATES v. ASHER (2019)

Phillip Asher pleaded guilty to wire fraud, in violation of 18 U.S.C. § 1343 (2012), and was sentenced to 33 months in prison—a term at the bottom of the advisory Guidelines range. Asher now appeals. Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that there are no meritorious issues for appeal, but questioning whether the district court complied with Fed. R. Crim. P. 11 in accepting Asher’s plea, and whether the court erred in rejecting Asher’s argument for a variant sentence based on his view that the Guidelines range overstated his criminal history. Asher has also filed a pro se supplemental brief on appeal.^*

Reviewing Asher’s plea colloquy for plain error—because Asher did not move to withdraw his guilty plea or otherwise object at the plea hearing, see United States v. Williams, 811 F.3d 621, 622 (4th Cir. 2016)—we conclude that the district court fully complied with the requirements of Rule 11, and that Asher’s plea was knowing, voluntary, and supported by a factual basis. Asher’s guilty plea is therefore valid.

We further conclude that the district court did not err in sentencing Asher. The district court properly calculated the advisory Guidelines range, responded to the parties’ sentencing arguments, and thoroughly explained the chosen sentence. In addition, Asher withdrew his objections to the calculation of the Guidelines range at sentencing, and has failed to rebut the presumption of reasonableness applied to the court’s sentence within that range. See United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).

In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm the district court’s judgment and Asher’s conviction and sentence. This court requires that counsel inform Asher, in writing, of the right to petition the Supreme Court of the United States for further review. If Asher 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 Asher.

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

FOOTNOTES

FOOTNOTE.   We have considered the issues raised in Asher’s pro se brief and conclude that they lack merit.

PER CURIAM:

Affirmed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.