United States v. Eric Smith

537 F. App'x 244
Court of Appeals for the Fourth Circuit·Decided August 8, 2013·No. 12-4653·Unpublished

Opinion

PER CURIAM:

Eric Grant Smith pled guilty, pursuant to a plea agreement, to one count of conspiracy to possess with intent to distribute more than fifty kilograms of marijuana, in violation of 21 U.S.C. § 846 (2006). The district court calculated Smith’s Guidelines sentence under the U.S. Sentencing Guidelines Manual (“USSG”) (2011) at 240 months’ imprisonment and sentenced him to 240 months’ imprisonment. On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that there are no meritorious issues for appeal, but questioning whether the district court reversibly erred in accepting Smith’s guilty plea and abused its discretion in imposing sentence. Smith has filed two pro se supplemental briefs. The Government declined to file a brief and does not seek to enforce the appeal waiver in Smith’s plea agreement. We affirm.

Because Smith did not move in the district court to withdraw his guilty plea, the adequacy of the Fed.R.Crim.P. 11 hearing is reviewed for plain error only. United States v. Martinez, 277 F.3d 517, 524-26 (4th Cir.2002). To demonstrate plain error, a defendant must show: (1) there was error; (2) the error was plain; and (3) the error affected his substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). 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 Rule 11 omissions. United States v. Massenburg, 564 F.3d 337, 343 (4th Cir.2009).

Our review of the transcript of the guilty plea hearing leads us to conclude that the district court substantially complied with the mandates of Rule 11 in accepting Smith’s guilty plea and that any omission by court did not affect Smith’s substantial rights. Critically, the transcript reveals that the district court ensured that the plea was supported by an independent basis in fact, and that Smith entered the plea knowingly and voluntarily with an understanding of the consequences. United States v. DeFusco, 949 F.2d 114, 116, 120 (4th Cir.1991). Accordingly, we discern no plain error in the district court’s acceptance of Smith’s guilty plea.

Turning to Smith’s 240-month sentence, we review it for reasonableness “under a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). This review entails appellate consideration of both the procedural and substantive reasonableness of the sentence. Id. at 51, 128 S.Ct. 586. In determining procedural reasonableness, we consider whether the district court properly calculated the defendant’s advisory Guidelines range, gave the parties an opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a) (2006) factors, selected a sentence based on clearly erroneous facts, and sufficiently explained the selected sentence. Id. at 49-51, 128 S.Ct. 586. If the sentence is free of “significant procedural error,” we review it for substantive reasonableness, “tak[ing] into account the totality of the circumstances.” Id. at 51, 128 S.Ct. 586. If the sentence is within the properly calculated Guidelines range, we apply a presumption on appeal that the sentence is substantively reasonable. United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir.2010). Such a presumption is rebutted only if the defendant shows “that the sen *247 tence 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).

Counsel and Smith both question whether the district court erred in calculating his total offense level under the Guidelines. We conclude after review of the record that the district court’s calculation of the drug quantity attributable to Smith is supported by statements from cooperating informants in the presentence report and the testimony adduced at sentencing that the district court credited. We thus discern no clear error in the court’s calculation of Smith’s base offense level under USSG § 2D1.1. See United States v. Kellam, 568 F.3d 125, 147 (4th Cir.2009) (stating the standard of review, noting that the district court’s drug quantity finding must be supported by a preponderance of the evidence, and concluding that testimony received at trial and sentencing supported the court’s finding); United States v. Randall, 171 F.3d 195, 210-11 (4th Cif.1999) (explaining that a defendant bears the burden of establishing that information in the presentence report the district court relied on in calculating the relevant drug quantity is incorrect).

Smith also claims that his plea agreement was breached by the district court’s drug quantity calculation. Because Smith did not raise this argument following the district court’s calculation of the drug quantity attributable to him, we review this claim for plain error. Puckett v. United States, 556 U.S. 129, 134-36, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). We conclude after review of the record that Smith fails to establish plain error by the district court. The parties’ agreement to recommend to the district court that a certain quantity of marijuana be used in the determination of Smith’s base offense level under the Guidelines was not binding on the court, and Smith does not suggest that the Government failed in its obligation to recommend at sentencing that the court use the agreed-upon quantity in calculating his base offense level. Smith thus fails to establish a plain breach of the plea agreement. See United States v. McQueen, 108 F.3d 64, 66 (4th Cir.1997) (holding that, to prevail on a claim of breach of the plea agreement under a plain error standard, the defendant must show not only a plain breach of the plea agreement but also that he was prejudiced by the error).

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United States v. Eric Smith, 537 F. App'x 244 (4th Cir. 2013).

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Related

United States v. Llamas
599 F.3d 381 (Fourth Circuit, 2010)
Anders v. California
386 U.S. 738 (Supreme Court, 1967)
United States v. Olano
507 U.S. 725 (Supreme Court, 1993)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
Puckett v. United States
556 U.S. 129 (Supreme Court, 2009)
United States v. James McQueen
108 F.3d 64 (Fourth Circuit, 1997)
United States v. Richard F. Harris
128 F.3d 850 (Fourth Circuit, 1997)
United States v. William Lee Jones
356 F.3d 529 (Fourth Circuit, 2004)
United States v. Massenburg
564 F.3d 337 (Fourth Circuit, 2009)
United States v. Kellam
568 F.3d 125 (Fourth Circuit, 2009)
United States v. Manigan
592 F.3d 621 (Fourth Circuit, 2010)
United States v. Mendoza-Mendoza
597 F.3d 212 (Fourth Circuit, 2010)