Fourth Circuit Affirms Drum's Sentence
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Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4474
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY LEE DRUM,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:14-cr-00232-MOC-1)
Submitted:
March 14, 2016
Decided:
March 24, 2016
Before KING, WYNN, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph Marshall Lee, Charlotte, North Carolina, for Appellant.
Jill Westmoreland Rose, United States Attorney, Amy E. Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony
Lee
Drum
pled
guilty
to
two
counts
of
harboring,
transporting, providing, obtaining, and maintaining a person who
had not attained the age of 18 years, knowing that the person
would be caused to engage in a commercial sex act, in violation
of
18
U.S.C.
1591(a)(1),
(b)(2)
(2012),
and
two
counts
of
transporting an individual who had not attained the age of 18
years in interstate commerce with the intent that the individual
engage
(2012).
in
prostitution,
in
violation
of
18
U.S.C.
2423(a)
A presentence report (PSR) calculated Drums Guidelines
range under the U.S. Sentencing Guidelines Manual (2014) at 188
to
235
months
imprisonment.
Drum
objected
to
the
PSRs
assignment of enhancements under USSG 2G1.3(b)(2)(B), (4)(A),
and
3A1.1(b)(1).
After
conferring
with
Drum,
however,
his
counsel stated at sentencing that Drum would abandon those
objections
and
recommendation
that
to
the
months imprisonment.
concurrent
terms
the
of
parties
district
court
were
for
making
a
sentence
joint
of
188
The district court sentenced Drum to four
188
months
imprisonment
and
supervised
release for a term of life.
On appeal, Drum challenges his sentence, arguing that the
waiver
of
his
right
to
object,
or
the
withdrawal
of
his
objections, was not knowing and voluntary because the district
court did not inquire whether he personally wished to withdraw
2
his objections.
He thus asserts that, as a consequence, this
court should vacate his sentence.
We review de novo the validity of a defendants waiver of
objections to a PSR, examining the totality of the circumstances
to
determine
voluntary.
whether
United
(4th Cir. 2014).
the
States
defendants
v.
waiver
Robinson,
744
was
knowing
F.3d
293,
and
298-99
After review of the record and the parties
briefs, we conclude that, even if Drum did not validly waive his
challenge to the application of the Guidelines enhancements, he
fails to establish any plain error warranting vacatur of his
sentence.
See United States v. Hargrove, 625 F.3d 170, 183-84
(4th
2010)
Cir.
(holding
that,
where
specific
allegation
of
sentencing error is not made below, review on appeal is for
plain error); see also Henderson v. United States, 133 S. Ct.
1121, 1126-27, 1130-31 (2013) (setting forth elements of plain
error standard).
Drum does not argue that the district court
erred in applying the enhancements under USSG 2G1.3(b)(2)(B),
(4)(A), and 3A1.1(b)(1).
error
in
the
application
substantial rights.
267,
273
(4th
Cir.
He further has not asserted that any
of
those
enhancements
affected
his
See United States v. Hernandez, 603 F.3d
2010)
(To
demonstrate
that
sentencing
error affected his substantial rights, Hernandez would have to
show that, absent the error, a different sentence might have
been imposed.).
He also presents no argument challenging the
3
imposition
by
the
district
court
of
the
lifetime
term
of
supervised release.
Because Drum fails to establish plain error by the district
court, the predicate to his claim on appeal that his sentence
should be vacated is not established.
We therefore reject the
claim and affirm the district courts judgment.
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
