USCA4 Appeal: 21-4360 Doc: 18 Filed: 06/15/2022 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-4360
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KATRELL DEVINAIR SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:19-cr-00313-FDW-DCK-1)
Submitted: May 13, 2022 Decided: June 15, 2022
Before WYNN and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Leslie Carter Rawls, Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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: 21-4360 Doc: 18 Filed: 06/15/2022 Pg: 2 of 7
PER CURIAM:
Katrell Devinair Smith pled guilty pursuant to a plea agreement to destruction and
delay of the mail by a postal employee, in violation of 18 U.S.C. § 1703. The district court
calculated Smith’s Guidelines ranges under the U.S. Sentencing Guidelines Manual (2018)
at four to ten months’ imprisonment and one to three years of supervised release and
sentenced Smith to four months’ imprisonment and one year of supervised release.
On appeal, Smith’s 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 Smith pled guilty knowingly and voluntarily, whether his
guilty plea was supported by a factual basis, whether trial counsel rendered ineffective
assistance, whether the prosecution engaged in misconduct, and whether the district court
abused its discretion in imposing sentence. Smith was informed of his right to file a pro se
supplemental brief but has not done so. The Government declined to file a responsive brief
and does not seek to enforce the appeal waiver in Smith’s plea agreement. 1 We affirm. 2
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,
1 Because the Government fails to assert the waiver as a bar to this appeal, we may consider the issues raised by counsel 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 During the pendency of this appeal, Smith was released from prison. We nevertheless conclude that, in view of Smith’s service of the one-year term of supervised release, this appeal is not moot. See United States v. Ketter, 908 F.3d 61, 65-66 (4th Cir. 2018).
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243 n.5 (1969). The Rule “sets out the information a court is to convey to ensure that a
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 Smith did not move in the district court to
withdraw his guilty plea, the acceptance of his guilty plea is reviewed for plain error only.
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 Fed. R. Crim. P. 11 omissions. United States v. Sanya, 774 F.3d 812, 815-16
(4th Cir. 2014).
Our review of the Anders brief and the transcript of the guilty plea hearing leads us
to conclude that the magistrate judge’s omissions under Rule 11 did not affect Smith’s
substantial rights. The transcript of the guilty plea hearing also reveals that the plea was
supported by an independent basis in fact and that Smith entered the plea knowingly and
voluntarily and with an understanding of the consequences. Accordingly, we discern no
plain error in the acceptance of Smith’s guilty plea.
Next, counsel questions whether trial counsel rendered ineffective assistance in the
proceedings below. We typically will not hear a claim of ineffective assistance of counsel
made on direct appeal, United States v. Maynes, 880 F.3d 110, 113 n.1 (4th Cir. 2018),
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“[u]nless an attorney’s ineffectiveness conclusively appears on the face of the record,”
United States v. Faulls, 821 F.3d 502, 507 (4th Cir. 2016). To establish ineffective
assistance of trial counsel, Smith must satisfy the two-part test set out in Strickland v.
Washington, 466 U.S. 668 (1984). He “must show that counsel’s performance was
[constitutionally] deficient” and “that the deficient performance prejudiced the defense.”
Id. at 687. After review, we conclude that ineffective assistance by trial counsel does not
conclusively appear on the face of the record. Such claim “should be raised, if at all, in a
28 U.S.C. § 2255 motion.” Faulls, 821 F.3d at 508. We therefore decline to address this
claim at this juncture.
Counsel also questions whether the prosecution engaged in misconduct. We review
this issue for plain error because Smith did not raise a claim of prosecutorial misconduct
in the district court. United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005). To succeed
on a claim of prosecutorial misconduct, the defendant bears the burden of showing that the
prosecution engaged in misconduct and that such conduct “prejudiced the defendant’s
substantial rights so as to deny the defendant a fair trial.” Id. We have reviewed the record
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USCA4 Appeal: 21-4360 Doc: 18 Filed: 06/15/2022 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-4360
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KATRELL DEVINAIR SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:19-cr-00313-FDW-DCK-1)
Submitted: May 13, 2022 Decided: June 15, 2022
Before WYNN and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Leslie Carter Rawls, Charlotte, 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: 21-4360 Doc: 18 Filed: 06/15/2022 Pg: 2 of 7
PER CURIAM:
Katrell Devinair Smith pled guilty pursuant to a plea agreement to destruction and
delay of the mail by a postal employee, in violation of 18 U.S.C. § 1703. The district court
calculated Smith’s Guidelines ranges under the U.S. Sentencing Guidelines Manual (2018)
at four to ten months’ imprisonment and one to three years of supervised release and
sentenced Smith to four months’ imprisonment and one year of supervised release.
On appeal, Smith’s 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 Smith pled guilty knowingly and voluntarily, whether his
guilty plea was supported by a factual basis, whether trial counsel rendered ineffective
assistance, whether the prosecution engaged in misconduct, and whether the district court
abused its discretion in imposing sentence. Smith was informed of his right to file a pro se
supplemental brief but has not done so. The Government declined to file a responsive brief
and does not seek to enforce the appeal waiver in Smith’s plea agreement. 1 We affirm. 2
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,
1 Because the Government fails to assert the waiver as a bar to this appeal, we may consider the issues raised by counsel 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 During the pendency of this appeal, Smith was released from prison. We nevertheless conclude that, in view of Smith’s service of the one-year term of supervised release, this appeal is not moot. See United States v. Ketter, 908 F.3d 61, 65-66 (4th Cir. 2018).
2 USCA4 Appeal: 21-4360 Doc: 18 Filed: 06/15/2022 Pg: 3 of 7
243 n.5 (1969). The Rule “sets out the information a court is to convey to ensure that a
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 Smith did not move in the district court to
withdraw his guilty plea, the acceptance of his guilty plea is reviewed for plain error only.
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 Fed. R. Crim. P. 11 omissions. United States v. Sanya, 774 F.3d 812, 815-16
(4th Cir. 2014).
Our review of the Anders brief and the transcript of the guilty plea hearing leads us
to conclude that the magistrate judge’s omissions under Rule 11 did not affect Smith’s
substantial rights. The transcript of the guilty plea hearing also reveals that the plea was
supported by an independent basis in fact and that Smith entered the plea knowingly and
voluntarily and with an understanding of the consequences. Accordingly, we discern no
plain error in the acceptance of Smith’s guilty plea.
Next, counsel questions whether trial counsel rendered ineffective assistance in the
proceedings below. We typically will not hear a claim of ineffective assistance of counsel
made on direct appeal, United States v. Maynes, 880 F.3d 110, 113 n.1 (4th Cir. 2018),
3 USCA4 Appeal: 21-4360 Doc: 18 Filed: 06/15/2022 Pg: 4 of 7
“[u]nless an attorney’s ineffectiveness conclusively appears on the face of the record,”
United States v. Faulls, 821 F.3d 502, 507 (4th Cir. 2016). To establish ineffective
assistance of trial counsel, Smith must satisfy the two-part test set out in Strickland v.
Washington, 466 U.S. 668 (1984). He “must show that counsel’s performance was
[constitutionally] deficient” and “that the deficient performance prejudiced the defense.”
Id. at 687. After review, we conclude that ineffective assistance by trial counsel does not
conclusively appear on the face of the record. Such claim “should be raised, if at all, in a
28 U.S.C. § 2255 motion.” Faulls, 821 F.3d at 508. We therefore decline to address this
claim at this juncture.
Counsel also questions whether the prosecution engaged in misconduct. We review
this issue for plain error because Smith did not raise a claim of prosecutorial misconduct
in the district court. United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005). To succeed
on a claim of prosecutorial misconduct, the defendant bears the burden of showing that the
prosecution engaged in misconduct and that such conduct “prejudiced the defendant’s
substantial rights so as to deny the defendant a fair trial.” Id. We have reviewed the record
and find no improper conduct on the part of the prosecution. We thus discern no plain
error in this regard.
Counsel further questions whether the district court abused its discretion in
imposing sentence. “We review a [criminal] sentence for reasonableness ‘under a
deferential abuse-of-discretion standard.’” United States v. McCoy, 804 F.3d 349, 351
(4th Cir. 2015) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). In conducting such
review, we must first ensure that the district court did not commit any significant
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procedural error, such as “failing to calculate (or improperly calculating) the [Sentencing]
Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence.” United States v. Lymas, 781 F.3d 106, 111-12
(4th Cir. 2015) (quoting Gall, 552 U.S. at 51). When rendering a sentence, the district
court must make an individualized assessment based on the facts presented, state in open
court the reasons supporting its chosen sentence, and address the parties’ nonfrivolous
arguments in favor of a particular sentence and, if it rejects them, explain why in a manner
allowing for meaningful appellate review. United States v. Provance, 944 F.3d 213, 218
(4th Cir. 2019).
If the sentence is procedurally sound, we review the substantive reasonableness of
the sentence. Gall, 552 U.S. at 51. Substantive reasonableness review “takes into account
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 within a properly calculated Guidelines range is
presumptively substantively reasonable, and Smith bears the burden of demonstrating that
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 properly calculated
Smith’s Guidelines imprisonment range, gave counsel an adequate opportunity to argue for
an appropriate sentence, properly afforded Smith the opportunity to allocute, and
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considered counsel’s argument, the advisory Guidelines range, and the § 3553(a) factors.
The court determined that the four-month prison sentence was warranted based on the
nature of Smith’s criminal conduct, the need for the sentence to afford adequate deterrence
to criminal conduct, and the needs for the sentence to reflect the seriousness of the offense
and to promote just punishment and respect for the law. See 18 U.S.C. § 3553(a)(1),
(2)(A)-(B). The court rejected the defense’s request for a probationary sentence,
explaining that probation would not sufficiently promote the sentencing goals of
deterrence, just punishment, and promoting respect for the law, and rejected the defense’s
argument that a prison sentence at the low end of the Guidelines range would promote
unwarranted sentencing disparities, see 18 U.S.C. § 3553(a)(6), for lack of supporting
argument and because the § 3553(a) factors supported the four-month term. The district
court’s explanation was sufficient to support the imposition of this term, and Smith does
not point to any factors to overcome the presumption of reasonableness afforded to it. We
thus discern no abuse of discretion in the imposition of the four-month prison term.
Turning to the reasonableness of Smith’s one-year term of supervised release,
because this issue was not raised before the district court, our review is for plain error only.
United States v. Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 2015). Smith’s conviction
was for a Class D felony, and, thus, the authorized term of supervised release that could be
imposed as part of his sentence for this offense was not more than three years. 18 U.S.C.
§§ 3559(a)(4), 3583(b)(2). The district court properly calculated Smith’s supervised
release Guidelines range and, after hearing argument, did not plainly err in its consideration
of the supporting § 3553(a) factors. The court’s comments sufficiently reveal the basis for
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the term it imposed, and Smith proffers no argument suggesting that the within-Guidelines
supervised release term was unreasonable when measured against the § 3553(a) factors.
He thus fails to establish plain error in his one-year term 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 Smith, in writing, of the right to petition the
Supreme Court of the United States for further review. If Smith 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 Smith.
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