United States v. Anthony Hopkins, Jr.

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 11, 2024
• Docket: 22-4641
• Status: Unpublished

Opinion

USCA4 Appeal: 22-4641 Doc: 35 Filed: 07/11/2024 Pg: 1 of 4

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4641

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTHONY BERNARD HOPKINS, JR., a/k/a Tony Cash,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Mary G. Lewis, District Judge. (3:20-cr-00739-MGL-1)

Submitted: April 26, 2024 Decided: July 11, 2024

Before THACKER and BENJAMIN, Circuit Judges, and MOTZ, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: John L. Warren, III, BILL NETTLES LAW, Columbia, South Carolina, for Appellant. Elliott Bishop Daniels, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-4641 Doc: 35 Filed: 07/11/2024 Pg: 2 of 4

PER CURIAM:

Anthony Bernard Hopkins, Jr., pled guilty without a plea agreement to one count of

armed bank robbery and aiding and abetting in violation of 18 U.S.C. §§ 2113(a), (d) and

2, and one count of brandishing a firearm during and in relation to a crime of violence and

aiding and abetting in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. The district court

sentenced him to 70 months’ imprisonment on the robbery count—a sentence below the

applicable advisory Sentencing Guidelines range—and a consecutive 84-month term on

the firearm count, to be followed by five years of supervised release. On appeal, Hopkins’

counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting

that there are no meritorious grounds for appeal but questioning whether the court erred in

accepting Hopkins’ guilty plea and whether his below-Guidelines sentence is procedurally

and substantively reasonable. Hopkins has filed a pro se supplemental brief. The

Government has declined to file a brief. We affirm.

Before accepting a guilty plea, the court must conduct a plea colloquy during which

it must inform the defendant of, and determine that the defendant understands, the rights

he is relinquishing by pleading guilty, potential immigration consequences, the charge to

which he is pleading, and the maximum and mandatory minimum penalties he faces. Fed.

R. Crim. P. 11(b)(1). The court also must ensure that the plea is voluntary and not the

result of threats or force, Fed. R. Crim. P. 11(b)(2), and that a factual basis supports the

plea, Fed. R. Crim. P. 11(b)(3).

Because Hopkins did not seek to withdraw his guilty plea, this court reviews the

adequacy of the Rule 11 hearing for plain error. United States v. Williams, 811 F.3d 621,

2 USCA4 Appeal: 22-4641 Doc: 35 Filed: 07/11/2024 Pg: 3 of 4

622 (4th Cir. 2016). “Under the plain error standard, this [c]ourt will correct an

unpreserved error if (1) an error was made; (2) the error is plain; (3) the error affects

substantial rights; and (4) the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Harris, 890 F.3d 480, 491 (4th Cir.

2018) (internal quotation marks omitted). “In the Rule 11 context, this inquiry means that

[Hopkins] must demonstrate a reasonable probability that, but for the error, he would not

have pleaded guilty.” United States v. Sanya, 774 F.3d 812, 816 (4th Cir. 2014) (internal

quotation marks omitted). Upon review, we find that the district court substantially

complied with Rule 11 and that any error did not affect Hopkins’ substantial rights. *

Next, we review a criminal “sentence[]—whether inside, just outside, or

significantly outside the Guidelines range—under a deferential abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 41 (2007). We “must first ensure that the

district court committed no significant procedural error, such as . . . improperly

calculating[] the Guidelines range, . . . failing to consider the [18 U.S.C.] § 3553(a) factors,

. . . or failing to adequately explain the chosen sentence—including an explanation for any

* We have also considered Hopkins’ pro se claim alleging that his guilty plea was involuntary due to an inadequate factual basis and conclude that it is without merit. Hopkins also contends that counsel was ineffective at the plea hearing for failing to object to a constructive amendment of conspiracy to the indictment and that counsel failed to object to the inadequate factual basis. Because counsel’s ineffective assistance does not appear conclusively on the record, we decline to consider these claims. United States v. Faulls, 821 F.3d 502, 507-08 (4th Cir. 2016). Absent this showing, ineffective assistance claims should be raised in a motion brought pursuant to 28 U.S.C. § 2255, to permit sufficient development of the record. Id. at 508; United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).

3 USCA4 Appeal: 22-4641 Doc: 35 Filed: 07/11/2024 Pg: 4 of 4

deviation from the Guidelines range.” Id. at 51. If there is no significant procedural error,

then we consider the sentence’s substantive reasonableness under “the totality of the

circumstances.” Id. “Any sentence that is within or below a properly calculated Guidelines

range is presumptively reasonable.” United States v. White, 810 F.3d 212, 230 (4th Cir.

2016) (internal quotation marks omitted).

Hopkins’ sentence is procedurally and substantively reasonable. The district court

properly calculated the applicable Guidelines range, listened to the parties’ arguments and

Hopkins’ allocution, considered the § 3553(a) factors, and explained its reasons for

imposing a below-Guidelines sentence of 70 months on the robbery count. We therefore

discern no abuse of discretion in the imposition of Hopkins’ sentence.

Accordingly, we affirm the district court’s judgment. In accordance with Anders,

we have reviewed the entire record in this case and have found no meritorious grounds for

appeal. We therefore affirm the district court’s judgment. This court requires that counsel

inform Hopkins, in writing, of the right to petition the Supreme Court of the United States

for further review. If Hopkins 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 Hopkins. 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