                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4869


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KELVIN JAMILLE REEVES, a/k/a Knowledge,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    G. Ross Anderson, Jr., Senior
District Judge. (6:11-cr-02026-GRA-9)


Submitted:   June 19, 2013                 Decided:   July 18, 2013


Before WILKINSON, FLOYD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Richard W. Vieth, Spartanburg, South Carolina, for Appellant.
William N. Nettles, United States Attorney, E. Jean Howard,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Kelvin Jamille Reeves appeals his conviction and 121-

month sentence imposed following his guilty plea to conspiracy

to possess with intent to distribute and distribute 280 grams or

more of crack, in violation of 21 U.S.C. § 846 (2006).                                 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    questioning        whether    the

district court committed sentencing error.                    Reeves was notified

of his right to file a pro se supplemental brief but has not

done so.        Following a review of the record, we directed the

parties    to   submit    supplemental           briefs   addressing        whether    the

district court committed plain error by concluding that Reeves’

plea was supported by an independent factual basis.                          Finding no

reversible error, we affirm.

            Because Reeves did not seek to withdraw his plea in

the district court or timely object to any alleged violation of

Fed. R. Crim. P. 11, we review his plea colloquy for plain

error.    United States v. Massenburg, 564 F.3d 337, 342 (4th Cir.

2009).    To establish plain error, Reeves must show that (1) the

district court erred, (2) the error was plain, and (3) the error

affects his substantial rights.                    United States v. Olano, 507

U.S. 725, 732 (1993).              In the guilty plea context, an error

affects a defendant’s substantial rights if he demonstrates a

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reasonable probability that he would not have pled guilty but

for the error.           Massenburg, 564 F.3d at 343.                       Even if these

requirements are met, we will correct such error only if it

“seriously affects the fairness, integrity or public reputation

of   judicial     proceedings.”             Olano,     507    U.S.     at     732     (internal

quotation marks and alteration omitted).

            When accepting a guilty plea, the district court must

find that the plea is supported by an independent factual basis.

Fed. R. Crim. P. 11(b)(3).                 The court possesses wide discretion

in   determining        the   factual         basis    and    may      rely      on    anything

appearing in the record.                   United States v. Ketchum, 550 F.3d

363,    366-67     (4th       Cir.      2008).          The     court       need      only     be

“subjectively satisfied” that the factual basis is sufficient to

establish each element of the offense.                       Id. at 366.         In reaching

this determination, the court is not required to find that a

jury would convict the defendant, “or even that the defendant is

guilty by a preponderance of the evidence.                           The district court

must    assure     itself         simply      that    the     conduct       to      which     the

defendant     admits     is       in   fact    an     offense    under      the       statutory

provision under which he is pleading guilty.”                           United States v.

Carr,   271      F.3d    172,      178-79      n.6     (4th     Cir.    2001)         (internal

quotation marks and citation omitted).

            To     prove      a    crack      conspiracy,        the    government           must

establish that “an agreement to distribute and possess [crack]

                                               3
with intent to distribute existed between two or more persons”

and that the defendant knew of and knowingly and voluntarily

became part of the conspiracy.                  United States v. Yearwood, 518

F.3d   220,    225-26     (4th    Cir.     2008)          (internal      quotation     marks

omitted).          “The   gravamen    of    the       crime       is     an    agreement    to

effectuate     a    criminal     act.”      Id.       at    226    (internal       quotation

marks omitted); see United States v. Edmonds, 679 F.3d 169, 173-

74   (4th    Cir.)    (discussing       distinction          between          conspiracy   and

underlying drug offense), vacated and remanded on other grounds,

133 S. Ct. 376, reissued in part, 700 F.3d 146, 147 (4th Cir.

2012).

              In proffering evidence to support Reeves’ plea, the

Government     recounted       that   the       indictment         against       Reeves    and

eleven      co-defendants        charged        a     broad       drug        conspiracy    in

Greenville County, South Carolina.                    The Government stated that a

confidential informant had made a small purchase of crack from

Reeves and that other individuals admitted to supplying Reeves

with crack cocaine.          When asked to confirm these facts, Reeves

readily admitted that he had sold crack, but he adamantly denied

involvement in a conspiracy.               Of the numerous individuals named

in the indictment as co-conspirators, Reeves acknowledged that

he   knew    his     brothers,    but    he         did    not    provide       any   further

testimony to indicate his knowing or voluntary participation in

the charged conspiracy.

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              While it is true that, “[o]nce the Government proves a

conspiracy, the evidence need only establish a slight connection

between a defendant and the conspiracy to support conviction,”

United States v. Green, 599 F.3d 360, 367 (4th Cir. 2010), we

question whether the evidence proffered by the Government was

sufficient to prove the requisite nexus between Reeves and the

charged conspiracy.        Neither the confidential informant, nor the

individuals     who     purportedly      provided        drugs     to    Reeves,    were

identified     as     co-conspirators.             The   Government       provided       no

indication of the quantity, frequency, or type of transactions

in which Reeves allegedly engaged, as necessary to use these

transactions     as    evidence    of    a       tacit   agreement       to   distribute

further.      See Edmonds, 679 F.3d at 174; United States v. Reid,

523 F.3d 310, 317 (4th Cir. 2008); United States v. Banks, 10

F.3d 1044, 1054 (4th Cir. 1993).                   Reeves’ receipt and sale of

drugs, standing alone, does not establish that he entered into

an agreement with his alleged co-conspirators.                           Moreover, the

mere   fact    that    Reeves     knew    or      was    related    to    certain    co-

conspirators does not demonstrate either his knowledge of the

conspiracy     or   his   knowing       and      voluntary   participation          in   a

conspiracy with these individuals.

              In reviewing a district court’s acceptance of a guilty

plea, “we will not find an abuse of discretion so long as the

district court could reasonably have determined that there was a

                                             5
sufficient          factual        basis       based        on    the     record      before     it.”

Ketchum, 550 F.3d at 367 (emphasis added) (internal quotation

marks       omitted).           However,            Reeves        pled    guilty       before      his

presentence report was prepared, and the court did not defer

accepting the plea until sentencing.                              Moreover, while the court

may     have       been     aware         of        other        facts    supporting          Reeves’

involvement based on the pleas and presentence reports of his

co-defendants, information about these defendants’ proceedings

is    not    available        in    the    record          on     appeal,      and    we   can    only

speculate as to the content of these materials and the extent to

which       the    district        court       may    have       relied       upon    them.       When

coupled       with       Reeves’     adamant             denial     of    participation          in    a

conspiracy, these facts may indeed be inadequate to establish an

independent factual basis for the plea.

                  Ultimately,        however,             we      need    not        resolve     this

question.          Reeves bears the burden to demonstrate each element

of plain error.             Importantly, Reeves does not assert that, had

the court been more exacting in ensuring factual support for the

plea, he would have chosen not to plead guilty and would have

insisted on proceeding to trial.                               In light of the additional

facts detailed in the presentence report, to which Reeves does

not object, we conclude that Reeves has not met his burden to

establish         that    any      error       in    accepting          the   plea    affects         his

substantial         rights.          Moreover,            these     facts      provide     adequate

                                                     6
support      for     Reeves’       plea    such     that    any      error        would    not

“seriously affect[] the fairness, integrity or public reputation

of    judicial      proceedings.”          Olano,    507    U.S.      at    732    (internal

quotation marks and alteration omitted).

              In his Anders brief, counsel also questions whether

the    district      court    committed        sentencing    error.          We     review    a

sentence imposed by the district court for reasonableness under

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

States,      552    U.S.     38,   46,    51   (2007).      We       first       examine    the

sentence for “significant procedural error,” including improper

calculation of the Guidelines range, insufficient consideration

of    the    18     U.S.C.    § 3553(a)        (2006)    factors,          and    inadequate

explanation of the sentence imposed.                    Gall, 552 U.S. at 51.                If

we    find    the    sentence      procedurally         reasonable,         we    also     must

examine the substantive reasonableness of the sentence under the

totality      of     the     circumstances.          Id.         A    within-Guidelines

sentence is presumed reasonable on appeal, and the defendant

bears the burden to “rebut the presumption by demonstrating 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).

              Unpreserved arguments regarding sentencing error are

reviewed for plain error.                 See United States v. Streiper, 666

F.3d 288, 292 (4th Cir. 2012); United States v. Lynn, 592 F.3d

                                               7
572, 577 (4th Cir. 2010).                   A defendant preserves a claim that

the district court failed to properly consider the § 3553(a)

factors    and    to   adequately           explain       the    chosen   sentence     “[b]y

drawing arguments from § 3553 for a sentence different than the

one ultimately imposed.”               Lynn, 592 F.3d at 578.              Because Reeves

did not object to the presentence report, request any specific

sentence,    or    raise       any    arguments       drawing      from    the     § 3553(a)

factors, we review these issues for plain error.                            See Streiper,

666 F.3d at 292; Lynn, 592 F.3d at 577-78.

            We have thoroughly reviewed the record and discern no

reversible       sentencing          error.         The    district       court     properly

calculated Reeves’ Guidelines range, conducted an individualized

assessment of his case, and announced a justification for its

sentence grounded in the relevant § 3553(a) factors.                                 To the

extent    the    court    may    have        erred    in    not    considering       Reeves’

history and characteristics more explicitly or in not permitting

the   Government          an     opportunity          to        present     arguments     at

sentencing,       we   conclude        such     error       did    not    affect     Reeves’

substantial rights; counsel did not request a below-Guidelines

sentence, and the court imposed a sentence at the bottom of the

Guidelines       range     and       only     one     month       above    the     statutory

mandatory    minimum.           Neither       Reeves       nor    the    available    record

provides     a    basis    to        rebut    the     presumption         of     substantive



                                               8
reasonableness      accorded      his     within-Guidelines               sentence.        See

Montes-Pineda, 445 F.3d at 379.

            In accordance with Anders, we have reviewed 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 Reeves, in writing, of the right to

petition    the    Supreme      Court   of       the    United      States      for   further

review.     If     Reeves      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 Reeves.

            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




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