United States v. Jerry Hartley

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 21, 2019
• Docket: 19-4319
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4319

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JERRY WILSON HARTLEY, a/k/a Jake,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. John Preston Bailey, District Judge. (2:16-cr-00023-JPB-MJA-2)

Submitted: November 19, 2019 Decided: November 21, 2019

Before WILKINSON and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Craig W. Sampson, BARNES & DIEHLL, PC, Richmond, Virginia, for Appellant. Stephen Donald Warner, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Elkins, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jerry Wilson Hartley pled guilty to conspiracy to distribute methamphetamine, in

violation of 21 U.S.C. §§ 841(b)(1)(C), 846 (2012). On appeal, counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), conceding that there are no

meritorious issues for appeal, but questioning whether Hartley’s plea was valid, whether

the district court erred in calculating Hartley’s Sentencing Guidelines range, and whether

trial counsel was ineffective. Hartley has filed a pro se supplemental brief, contending that

the district court erred in calculating his criminal history category. We affirm the district

court’s judgment.

We first review the adequacy of the Fed. R. Crim. P. 11 hearing; because Hartley

did not move to withdraw his guilty plea, we review the hearing for plain error. United

States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014). Before accepting a guilty plea, the

district court must conduct a plea colloquy in which it informs the defendant of, and

determines he understands, the rights he is relinquishing by pleading guilty, the charges to

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

R. Crim. P. 11(b)(1); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). The

court must also ensure that the plea was voluntary and not the results of threats, force, or

promises not contained in the plea agreement, Fed. R. Crim. P. 11(b)(2), and “that there is

a factual basis for the plea,” Fed. R. Crim. P. 11(b)(3). Hartley consented to the magistrate

judge conducting the Rule 11 hearing and the magistrate judge fully complied with Rule

11. See United States v. Benton, 523 F.3d 424, 431-33 (4th Cir. 2008).

2 Turning to the calculation of Hartley’s Guidelines range, “[w]e accord due

deference to a district court’s application of the sentencing guidelines.” United States v.

Steffen, 741 F.3d 411, 414 (4th Cir. 2013). Because Hartley did not object to the Guidelines

calculations in the district court, we review them for plain error. United States v. Aplicano-

Oyuela, 792 F.3d 416, 422 (4th Cir. 2015).

We discern no plain error. The district court applied the parties’ stipulation

regarding the base offense level, a stipulation supported by the evidence in the presentence

report. See United States v. Mondragon, 860 F.3d 227, 233 (4th Cir. 2017) (“[T]he

defendant bears an affirmative duty to show that the information in the presentence report

is unreliable, and articulate the reasons why the facts contained therein are untrue or

inaccurate.” (internal quotation marks omitted)). The district court appropriately applied

enhancements because Hartley conducted a drug sale while possessing a firearm and

supervised a conspiracy involving more than five individuals. See U.S. Sentencing

Guidelines Manual §§ 2D1.1(b)(1), 3B1.1(b) (2016). The court correctly applied two

criminal history category points because Hartley was sentenced on an obstruction charge

during the conspiracy. See USSG § 4A1.1(d). While Hartley contests the motives

underlying the state prosecution, this is not a relevant factor in calculating the criminal

history score. Finally, while counsel and Hartley question whether trial counsel was

ineffective, counsel’s ineffectiveness does not appear on the face of the record; thus,

Hartley should raise this claim, if at all, in a 28 U.S.C. § 2255 (2012) motion. See United

States v. Faulls, 821 F.3d 502, 507-08 (4th Cir. 2016).

3 In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious issues for review. We therefore affirm the district court’s judgment.

This court requires that counsel inform Hartley, in writing, of the right to petition the

Supreme Court of the United States for further review. If Hartley 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 Hartley.

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