United States v. Michael Hilliard

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4605

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL C. HILLIARD,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:17-cr-00044-HEH-1)

Submitted: May 14, 2018 Decided: May 25, 2018

Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Geremy C. Kamens, Federal Public Defender, Frances H. Pratt, Assistant Federal Public Defender, Alexandria, Virginia, Carolyn V. Grady, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Richard Daniel Cooke, Assistant United States Attorney, Heather Hart Mansfield, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Michael C. Hilliard pled guilty to possession of a firearm by a convicted felon, 18

U.S.C. § 922(g)(1) (2012), and was sentenced to 90 months’ imprisonment. Hilliard

appeals. 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 questioning whether the

district court failed to ensure that Hilliard was making a knowing and voluntary decision

to plead guilty and whether Hilliard’s sentence is procedurally unreasonable. Although

advised of his right to file a pro se supplemental brief, Hilliard has not done so.

Counsel first questions whether Hilliard’s guilty plea was knowingly and

voluntarily entered because the district court failed to adequately comply with Fed. R.

Crim. P. 11 during the guilty plea hearing. Specifically, counsel asserts that the district

court failed to: (1) describe the elements of the offense, (2) ascertain that Hilliard was

aware of his constitutional right to confront and cross-examine government witnesses,

and (3) ensure that Hilliard had not been forced or threatened into pleading guilty.

Because Hilliard did not move to withdraw his guilty plea, this court reviews the

adequacy of the Rule 11 proceeding for plain error. United States v. Sanya, 774 F.3d

812, 815 (4th Cir. 2014). To prevail under this standard, Hilliard “must demonstrate not

only that the district court plainly erred, but also that this error affected [his] substantial

rights.” Id. at 816. A defendant who pleads guilty establishes that an error affected his

substantial rights by demonstrating a reasonable probability that he would not have pled

guilty but for the error. United States v. Davila, 569 U.S. 597, 608 (2013).

2 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 charge 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 also must ensure that the plea

was voluntary and not the result 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). Any variance from the requirements of Rule 11 “is harmless error

if it does not affect substantial rights.” Fed. R. Crim. P. 11(h).

We have reviewed the transcript of Hilliard’s guilty plea hearing and find that the

district court substantially complied with Rule 11, ensuring that Hilliard entered his plea

knowingly and voluntarily and that a factual basis supported the pleas. See DeFusco, 949

F.2d at 116, 119-20 (explaining Rule 11 requirements). Accordingly, we find that any

omission by the district court was harmless and that Hilliard’s guilty plea was valid.

Next, counsel questions the procedural reasonableness of Hilliard’s sentence

because the district court failed to adequately explain its reasons for the chosen sentence.

We review a defendant’s sentence “under a deferential abuse-of-discretion standard.”

Gall v. United States, 552 U.S. 38, 41 (2007). Under this standard, a sentence is

reviewed for both procedural and substantive reasonableness. Id. at 51. In determining

procedural reasonableness, this court considers whether the district court properly

calculated the defendant’s advisory Sentencing Guidelines range, gave the parties an

opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a)

3 (2012) factors, and sufficiently explained the selected sentence. Id. at 49-51.

“Regardless of whether the district court imposes an above, below, or within-Guidelines

sentence, it must place on the record an ‘individualized assessment’ based on the

particular facts of the case before it.” United States v. Carter, 564 F.3d 325, 330 (4th Cir.

2009) (quoting Gall, 552 U.S. at 50). In evaluating a sentencing court’s explanation of a

selected sentence, this court consistently has held that, although the district court must

consider the statutory factors and explain the sentence, “it need not robotically tick

through the § 3553(a) factors.” United States v. Helton, 782 F.3d 148, 153 (4th Cir.

2015) (internal quotation marks omitted).

We have reviewed the record and conclude that the district court properly

calculated Hilliard’s Guidelines range and, although the district court’s sentencing

explanation was brief, it was not procedurally deficient. Rather, the record demonstrates

that the district court conducted an individualized assessment of Hilliard’s circumstances

and adequately explained its decision before imposing sentence. The sentence was

therefore procedurally reasonable.

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

have found no meritorious issues for appeal. We therefore affirm Hilliard’s conviction

and sentence. This court requires that counsel inform Hilliard, in writing, of the right to

petition the Supreme Court of the United States for further review. If Hilliard 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 Hilliard. We dispense with oral

4 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