USCA4 Appeal: 21-4113 Doc: 25 Filed: 08/09/2022 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-4113
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEEF JAMAR NICKS, a/k/a Jamar Aleef Nicks,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Kenneth D. Bell, District Judge. (5:20-cr-00097-KDB-DCK-1)
Submitted: May 31, 2022 Decided: August 9, 2022
Before DIAZ and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Samuel B. Winthrop, WINTHROP & GAINES MESSICK, PLLC, Statesville, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4113 Doc: 25 Filed: 08/09/2022 Pg: 2 of 7
PER CURIAM:
Aleef Jamar Nicks pled guilty pursuant to a plea agreement to possession with intent
to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (count 1), and
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(count 2). The district court calculated Nicks’ advisory imprisonment range under the U.S.
Sentencing Guidelines Manual (2018) at 92 to 115 months and sentenced Nicks to two
concurrent terms of 108 months’ imprisonment and two concurrent three-year terms of
supervised release.
On appeal, Nicks’ counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), stating that there are no meritorious grounds for appeal, but raising
as issues for review whether Nicks’ sentence is procedurally and substantively reasonable.
Nicks filed a pro se supplemental brief in which he questions whether his guilty plea was
knowingly and voluntarily made and whether the district court imposed a procedurally
reasonable sentence. The Government declined to file a brief and does not seek to enforce
the appeal waiver in Nicks’ plea agreement. 1 We affirm.
In federal cases, Rule 11 of the Federal Rules of Criminal Procedure “governs the
duty of the trial judge before accepting a guilty plea.” Boykin v. Alabama, 395 U.S. 238,
243 n.5 (1969). The Rule “sets out the information a court is to convey to ensure that a
1 Because the Government fails to assert the waiver as a bar to this appeal, we may consider the issues raised by counsel and Nicks and conduct an independent review of the record pursuant to Anders. See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).
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defendant who pleads guilty understands the consequences of the plea.” United States v.
Nicholson, 676 F.3d 376, 381 (4th Cir. 2012). “The court also must determine that the plea
is voluntary and that there is a factual basis for the plea.” United States v. Williams,
811 F.3d 621, 622 (4th Cir. 2016). Because Nicks did not move in the district court to
withdraw his guilty plea, the acceptance of it is reviewed for plain error. United States v.
Lockhart, 947 F.3d 187, 191 (4th Cir. 2020) (en banc). “To succeed under plain error
review, a defendant must show that: (1) an error occurred; (2) the error was plain; and (3)
the error affected his substantial rights.” Id. 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 error.
United States v. Sanya, 774 F.3d 812, 815-16 (4th Cir. 2014).
Our review of the record leads us to conclude that the magistrate judge’s omissions
under Rule 11 did not affect Nicks’ substantial rights. The record also reveals that the plea
was supported by an independent basis in fact and that Nicks entered the plea voluntarily
and with an understanding of the consequences. We reject as unsupported by the record
Nicks’ suggestion made in his pro se brief that he did not plead guilty knowingly and
voluntarily because counsel never advised him of and never objected to the erroneous
enhancement of his Sentencing Guidelines offense level. Accordingly, we discern no plain
error warranting correction in the acceptance of Nicks’ guilty plea.
Turning to Nicks’ sentence, this court “reviews all sentences—whether inside, just
outside, or significantly outside the Guidelines range—under a deferential
abuse-of-discretion standard.” United States v. Torres-Reyes, 952 F.3d 147, 151 (4th Cir.
3 USCA4 Appeal: 21-4113 Doc: 25 Filed: 08/09/2022 Pg: 4 of 7
2020) (cleaned up). This review entails consideration of both the procedural and
substantive reasonableness of the sentence. Id. In determining procedural reasonableness,
this court considers whether the district court properly calculated the defendant’s
Guidelines range, gave the parties an opportunity to argue for an appropriate sentence,
considered the 18 U.S.C. § 3553(a) factors, and sufficiently explained the selected
sentence. United States v. Fowler, 948 F.3d 663, 668 (4th Cir. 2020). If there are no
procedural errors, this court then considers the substantive reasonableness of the sentence,
evaluating “the totality of the circumstances to determine whether the sentencing court
abused its discretion in concluding that the sentence it chose satisfied the standards set forth
in § 3553(a).” United States v. Nance, 957 F.3d 204, 212 (4th Cir. 2020) (internal quotation
marks omitted). Any sentence that is within a properly calculated Guidelines range is
presumptively substantively reasonable, and the defendant bears the burden of
demonstrating the sentence is unreasonable when measured against the § 3553(a) factors.
United States v. White, 810 F.3d 212, 230 (4th Cir. 2016).
After review of the record, we conclude that the district court did not reversibly err
in calculating Nicks’ Guidelines imprisonment range. Contrary to Nicks’ suggestions
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USCA4 Appeal: 21-4113 Doc: 25 Filed: 08/09/2022 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-4113
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEEF JAMAR NICKS, a/k/a Jamar Aleef Nicks,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Kenneth D. Bell, District Judge. (5:20-cr-00097-KDB-DCK-1)
Submitted: May 31, 2022 Decided: August 9, 2022
Before DIAZ and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Samuel B. Winthrop, WINTHROP & GAINES MESSICK, PLLC, Statesville, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4113 Doc: 25 Filed: 08/09/2022 Pg: 2 of 7
PER CURIAM:
Aleef Jamar Nicks pled guilty pursuant to a plea agreement to possession with intent
to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (count 1), and
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(count 2). The district court calculated Nicks’ advisory imprisonment range under the U.S.
Sentencing Guidelines Manual (2018) at 92 to 115 months and sentenced Nicks to two
concurrent terms of 108 months’ imprisonment and two concurrent three-year terms of
supervised release.
On appeal, Nicks’ counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), stating that there are no meritorious grounds for appeal, but raising
as issues for review whether Nicks’ sentence is procedurally and substantively reasonable.
Nicks filed a pro se supplemental brief in which he questions whether his guilty plea was
knowingly and voluntarily made and whether the district court imposed a procedurally
reasonable sentence. The Government declined to file a brief and does not seek to enforce
the appeal waiver in Nicks’ plea agreement. 1 We affirm.
In federal cases, Rule 11 of the Federal Rules of Criminal Procedure “governs the
duty of the trial judge before accepting a guilty plea.” Boykin v. Alabama, 395 U.S. 238,
243 n.5 (1969). The Rule “sets out the information a court is to convey to ensure that a
1 Because the Government fails to assert the waiver as a bar to this appeal, we may consider the issues raised by counsel and Nicks and conduct an independent review of the record pursuant to Anders. See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).
2 USCA4 Appeal: 21-4113 Doc: 25 Filed: 08/09/2022 Pg: 3 of 7
defendant who pleads guilty understands the consequences of the plea.” United States v.
Nicholson, 676 F.3d 376, 381 (4th Cir. 2012). “The court also must determine that the plea
is voluntary and that there is a factual basis for the plea.” United States v. Williams,
811 F.3d 621, 622 (4th Cir. 2016). Because Nicks did not move in the district court to
withdraw his guilty plea, the acceptance of it is reviewed for plain error. United States v.
Lockhart, 947 F.3d 187, 191 (4th Cir. 2020) (en banc). “To succeed under plain error
review, a defendant must show that: (1) an error occurred; (2) the error was plain; and (3)
the error affected his substantial rights.” Id. 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 error.
United States v. Sanya, 774 F.3d 812, 815-16 (4th Cir. 2014).
Our review of the record leads us to conclude that the magistrate judge’s omissions
under Rule 11 did not affect Nicks’ substantial rights. The record also reveals that the plea
was supported by an independent basis in fact and that Nicks entered the plea voluntarily
and with an understanding of the consequences. We reject as unsupported by the record
Nicks’ suggestion made in his pro se brief that he did not plead guilty knowingly and
voluntarily because counsel never advised him of and never objected to the erroneous
enhancement of his Sentencing Guidelines offense level. Accordingly, we discern no plain
error warranting correction in the acceptance of Nicks’ guilty plea.
Turning to Nicks’ sentence, this court “reviews all sentences—whether inside, just
outside, or significantly outside the Guidelines range—under a deferential
abuse-of-discretion standard.” United States v. Torres-Reyes, 952 F.3d 147, 151 (4th Cir.
3 USCA4 Appeal: 21-4113 Doc: 25 Filed: 08/09/2022 Pg: 4 of 7
2020) (cleaned up). This review entails consideration of both the procedural and
substantive reasonableness of the sentence. Id. In determining procedural reasonableness,
this court considers whether the district court properly calculated the defendant’s
Guidelines range, gave the parties an opportunity to argue for an appropriate sentence,
considered the 18 U.S.C. § 3553(a) factors, and sufficiently explained the selected
sentence. United States v. Fowler, 948 F.3d 663, 668 (4th Cir. 2020). If there are no
procedural errors, this court then considers the substantive reasonableness of the sentence,
evaluating “the totality of the circumstances to determine whether the sentencing court
abused its discretion in concluding that the sentence it chose satisfied the standards set forth
in § 3553(a).” United States v. Nance, 957 F.3d 204, 212 (4th Cir. 2020) (internal quotation
marks omitted). Any sentence that is within a properly calculated Guidelines range is
presumptively substantively reasonable, and the defendant bears the burden of
demonstrating the sentence is unreasonable when measured against the § 3553(a) factors.
United States v. White, 810 F.3d 212, 230 (4th Cir. 2016).
After review of the record, we conclude that the district court did not reversibly err
in calculating Nicks’ Guidelines imprisonment range. Contrary to Nicks’ suggestions
made in the Anders and pro se briefs, the district court did not plainly err in enhancing his
base offense level under USSG § 2D1.1(b)(1) and USSG § 3B1.1(b). See United States v.
Kobito, 994 F.3d 696, 701 (4th Cir. 2021) (stating standard of review). The enhancement
under § 2D1.1(b)(1) is supported by information in the presentence report (PSR) the district
court adopted establishing that Nicks possessed a loaded firearm in connection with drug
activity that was part of the same course of conduct as his offense of conviction. See USSG
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§ 2D1.1(b)(1) & cmt. n.11(A); United States v. Bolton, 858 F.3d 905, 912 (4th Cir. 2017).
Nicks did not establish that the information in the PSR was incorrect, cf. United States v.
Slade, 631 F.3d 185, 188 (4th Cir. 2011); United States v. Randall, 171 F.3d 195, 210-11
(4th Cir. 1999), and points on appeal to no evidence suggesting the connection between the
firearm and his drug activity was “clearly improbable,” Bolton, 858 F.3d at 912 (internal
quotation marks omitted). The enhancement under § 3B1.1(b) is supported by information
in the PSR the district court adopted-and which Nicks failed to show was
incorrect-establishing that he supervised his girlfriend and other persons in an extensive
conspiracy to distribute cocaine. See USSG § 3B1.1(b); United States v. Steffen, 741 F.3d
411, 414 (4th Cir. 2013). We also discern no reversible error in the district court’s
remaining calculations relative to the Guidelines imprisonment range. 2
The district court, further, afforded counsel an adequate opportunity to argue for an
appropriate sentence, properly heard allocution from Nicks, and properly heard statements
from Nicks’ supporters. After considering the argument and these statements, the advisory
Guidelines range, and the 18 U.S.C. § 3553(a) factors, the district court determined that
concurrent prison terms of 108 months were warranted based on the nature and
circumstances of Nicks’ offense conduct, his history and characteristics, and the needs for
2 Because the district court did not reversibly err in calculating Nicks’ 92-to-115-month Guidelines imprisonment range—the range the PSR calculated for count 1 and concluded was the applicable Guidelines range for Nicks—counsel’s challenge in the Anders brief to a proposal in the PSR that the court apply an enhancement under USSG § 2D1.1(b)(6) to count 2 fails. The district court did not adopt that proposal in calculating Nicks’ Guidelines imprisonment range.
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the sentence imposed to promote respect for the law, to reflect the seriousness of Nicks’
offense, to afford adequate deterrence to criminal conduct, and to protect the public from
further crimes by Nicks, see 18 U.S.C. § 3553(a)(1), (2)(A)-(C). The district court’s
explanation—which, contrary to counsel’s suggestion in the Anders brief, makes plain the
court considered the § 3533(a) factors—was sufficient to support the imposition of these
terms, and Nicks does not overcome the presumption of reasonableness afforded to them.
We thus discern no abuse of discretion in the district court’s imposition of the 108-month
prison terms.
Turning to the three-year terms of supervised release, we review the reasonableness
of these terms for plain error. United States v. Aplicano-Oyuela, 792 F.3d 416, 422
(4th Cir. 2015). The district court did not err in calculating Nicks’ supervised release
Guidelines sentence and range and did not plainly err in its consideration of the § 3553(a)
factors supporting its sentencing decision. The court’s comments sufficiently reveal the
basis for the terms it imposed, and Nicks proffers no argument suggesting that the
within-Guidelines supervised release terms are unreasonable when measured against the
§ 3553(a) factors. He thus fails to establish plain error in his three-year terms of supervised
release.
In accordance with Anders, we also have reviewed the remainder of the record and
have found no meritorious issues for appeal. We therefore affirm the criminal judgment.
This court requires that counsel inform Nicks, in writing, of the right to petition the
Supreme Court of the United States for further review. If Nicks requests that a petition be
filed, but counsel believes that such a petition would be frivolous, then counsel may move
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in this court for leave to withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Nicks.
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