USCA4 Appeal: 23-4345 Doc: 44 Filed: 12/23/2024 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-4345
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONALD SHAW, a/k/a Fuzz,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:22-cr-00041-JPB-JPM-1)
Submitted: November 25, 2024 Decided: December 23, 2024
Before NIEMEYER and GREGORY, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Brendan S. Leary, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Wheeling, West Virginia; Barry P. Beck, POWER, BECK & MATZUREFF, Martinsburg, West Virginia, for Appellant. William Ihlenfeld, United States Attorney, Carly Cordaro Nogay, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-4345 Doc: 44 Filed: 12/23/2024 Pg: 2 of 7
PER CURIAM:
Ronald Shaw appeals his conviction and sentence after pleading guilty to possession
with intent to distribute 50 grams or more of methamphetamine within 1,000 feet of a
protected location. On appeal, Shaw’s attorney filed a brief under Anders v. California,
386 U.S. 738 (1967), raising the issue of whether the district court erred in imposing a
prison sentence within the advisory Guidelines range but concluding that there were no
meritorious grounds for appeal. Shaw filed a pro se supplemental brief and an amended
pro se supplemental brief asserting ineffective assistance of counsel and sentencing claims.
We previously directed the parties to file supplemental briefs addressing whether the
magistrate judge plainly erred in advising Shaw about the statutory penalty for supervised
release; and if so, whether Shaw can show that his substantial rights were affected by the
alleged error. The parties have now filed the briefs as directed. We affirm.
We first consider the validity of Shaw’s guilty plea. “[T]o be constitutionally valid,
a plea of guilty must be knowingly and voluntarily made.” United States v. Paylor, 88
F.4th 553, 560 (4th Cir. 2023) (internal quotation marks omitted). Rule 11 of the Federal
Rules of Criminal Procedure “outlines the requirements for a district court plea colloquy,
designed to ensure that a defendant ‘understands the law of his crime in relation to the facts
of his case, as well as his rights as a criminal defendant.’” United States v. Kemp, 88 F.4th
539, 545 (4th Cir. 2023) (quoting United States v. Vonn, 535 U.S. 55, 62 (2002)). Among
other things, Rule 11 requires that a defendant be advised of any maximum possible penalty
and any mandatory minimum penalty. Fed. R. Crim. P. 11(b)(1)(H)-(I); United States v.
Massenburg, 564 F.3d 337, 341 (4th Cir. 2009). “The district court must also ‘determine
2 USCA4 Appeal: 23-4345 Doc: 44 Filed: 12/23/2024 Pg: 3 of 7
that the plea is voluntary and that there is a factual basis for the plea.’” United States v.
Taylor-Saunders, 88 F.4th 516, 522 (4th Cir. 2023).
When a defendant contests the validity of a guilty plea that he did not challenge or
seek to withdraw in the district court, we review the challenge only for plain error. United
States v. King, 91 F.4th 756, 760 (4th Cir. 2024). Plain error can be reviewed where the
defendant establishes: (1) there is error; (2) the error is plain; and (3) the error affects his
substantial rights. Id. “To satisfy this third condition, the defendant must show a
reasonable probability that, but for the error, the outcome of the proceeding would have
been different.” United States v. Perdue, 110 F.4th 662, 668 (4th Cir. 2024) (internal
quotation marks omitted). Specifically, he must “show a reasonable probability that,
properly informed . . . he would not have pleaded guilty.” Id. at 670; King, 91 F.4th at 763.
Even if the defendant satisfies this three-prong test, we will exercise our discretion
to remedy the error “only if it ‘seriously affects the fairness, integrity or public reputation
of judicial proceedings.’” King, 91 F.4th at 760 (quoting United States v. Olano, 507 U.S.
725, 732 (1993)). “The defendant bears the burden of satisfying each element of the plain
error standard.” Id. We review the entire record to evaluate a defendant’s challenge to the
validity of his guilty plea. See Greer v. United States, 593 U.S. 503, 511 (2021); United
States v. Heyward, 42 F.4th 460, 467 (4th Cir. 2022).
In their supplemental briefs, the parties agree that the magistrate judge plainly erred
in advising Shaw of the statutory penalty for supervised release at his Rule 11 hearing. As
correctly stated in his subsequent presentence report, he faced a mandatory minimum term
of supervised release of eight years; but the magistrate judge advised Shaw that he faced a
3 USCA4 Appeal: 23-4345 Doc: 44 Filed: 12/23/2024 Pg: 4 of 7
supervised release term of six years. We agree that the magistrate judge plainly erred, but
we conclude that Shaw fails to show a reasonable probability that if he had been properly
informed of the supervised release term, he would not have pled guilty to the offense.
On appeal, Shaw has not provided any evidence or an affirmative representation that
he would not have pled guilty if correctly informed of the supervised release term; and by
pleading guilty to the offense, he received a reduction in his advisory Guidelines range for
imprisonment. Moreover, when he was correctly informed of the supervised release term
in his presentence report at sentencing, he did not object or seek to withdraw his guilty
plea. Although “erroneous sentencing information given during a Rule 11 colloquy cannot
be cured by contrary information later contained in a PSR,” United States v. Lockhart, 947
F.3d 187, 192 (4th Cir. 2020) (en banc), a defendant’s “failure to move to withdraw his
guilty plea after learning of the mandatory minimum through the PSR is some evidence
that he would have entered the plea regardless,” Massenburg, 564 F.3d at 344.
We therefore conclude that Shaw’s guilty plea is valid. We also find the remaining
issues raised in the Anders and pro se briefs without merit. Anders counsel raises the issue
of whether Shaw’s prison sentence at the bottom of his Guidelines range is reasonable; and
in his pro se briefs, Shaw asserts ineffective assistance and sentencing claims.
Ineffective assistance of counsel claims are typically “litigated in the first instance
in the district court, the forum best suited to developing the facts necessary to determining
the adequacy of representation during an entire trial,” Massaro v. United States, 538 U.S.
Free access — add to your briefcase to read the full text and ask questions with AI
USCA4 Appeal: 23-4345 Doc: 44 Filed: 12/23/2024 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-4345
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONALD SHAW, a/k/a Fuzz,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:22-cr-00041-JPB-JPM-1)
Submitted: November 25, 2024 Decided: December 23, 2024
Before NIEMEYER and GREGORY, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Brendan S. Leary, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Wheeling, West Virginia; Barry P. Beck, POWER, BECK & MATZUREFF, Martinsburg, West Virginia, for Appellant. William Ihlenfeld, United States Attorney, Carly Cordaro Nogay, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-4345 Doc: 44 Filed: 12/23/2024 Pg: 2 of 7
PER CURIAM:
Ronald Shaw appeals his conviction and sentence after pleading guilty to possession
with intent to distribute 50 grams or more of methamphetamine within 1,000 feet of a
protected location. On appeal, Shaw’s attorney filed a brief under Anders v. California,
386 U.S. 738 (1967), raising the issue of whether the district court erred in imposing a
prison sentence within the advisory Guidelines range but concluding that there were no
meritorious grounds for appeal. Shaw filed a pro se supplemental brief and an amended
pro se supplemental brief asserting ineffective assistance of counsel and sentencing claims.
We previously directed the parties to file supplemental briefs addressing whether the
magistrate judge plainly erred in advising Shaw about the statutory penalty for supervised
release; and if so, whether Shaw can show that his substantial rights were affected by the
alleged error. The parties have now filed the briefs as directed. We affirm.
We first consider the validity of Shaw’s guilty plea. “[T]o be constitutionally valid,
a plea of guilty must be knowingly and voluntarily made.” United States v. Paylor, 88
F.4th 553, 560 (4th Cir. 2023) (internal quotation marks omitted). Rule 11 of the Federal
Rules of Criminal Procedure “outlines the requirements for a district court plea colloquy,
designed to ensure that a defendant ‘understands the law of his crime in relation to the facts
of his case, as well as his rights as a criminal defendant.’” United States v. Kemp, 88 F.4th
539, 545 (4th Cir. 2023) (quoting United States v. Vonn, 535 U.S. 55, 62 (2002)). Among
other things, Rule 11 requires that a defendant be advised of any maximum possible penalty
and any mandatory minimum penalty. Fed. R. Crim. P. 11(b)(1)(H)-(I); United States v.
Massenburg, 564 F.3d 337, 341 (4th Cir. 2009). “The district court must also ‘determine
2 USCA4 Appeal: 23-4345 Doc: 44 Filed: 12/23/2024 Pg: 3 of 7
that the plea is voluntary and that there is a factual basis for the plea.’” United States v.
Taylor-Saunders, 88 F.4th 516, 522 (4th Cir. 2023).
When a defendant contests the validity of a guilty plea that he did not challenge or
seek to withdraw in the district court, we review the challenge only for plain error. United
States v. King, 91 F.4th 756, 760 (4th Cir. 2024). Plain error can be reviewed where the
defendant establishes: (1) there is error; (2) the error is plain; and (3) the error affects his
substantial rights. Id. “To satisfy this third condition, the defendant must show a
reasonable probability that, but for the error, the outcome of the proceeding would have
been different.” United States v. Perdue, 110 F.4th 662, 668 (4th Cir. 2024) (internal
quotation marks omitted). Specifically, he must “show a reasonable probability that,
properly informed . . . he would not have pleaded guilty.” Id. at 670; King, 91 F.4th at 763.
Even if the defendant satisfies this three-prong test, we will exercise our discretion
to remedy the error “only if it ‘seriously affects the fairness, integrity or public reputation
of judicial proceedings.’” King, 91 F.4th at 760 (quoting United States v. Olano, 507 U.S.
725, 732 (1993)). “The defendant bears the burden of satisfying each element of the plain
error standard.” Id. We review the entire record to evaluate a defendant’s challenge to the
validity of his guilty plea. See Greer v. United States, 593 U.S. 503, 511 (2021); United
States v. Heyward, 42 F.4th 460, 467 (4th Cir. 2022).
In their supplemental briefs, the parties agree that the magistrate judge plainly erred
in advising Shaw of the statutory penalty for supervised release at his Rule 11 hearing. As
correctly stated in his subsequent presentence report, he faced a mandatory minimum term
of supervised release of eight years; but the magistrate judge advised Shaw that he faced a
3 USCA4 Appeal: 23-4345 Doc: 44 Filed: 12/23/2024 Pg: 4 of 7
supervised release term of six years. We agree that the magistrate judge plainly erred, but
we conclude that Shaw fails to show a reasonable probability that if he had been properly
informed of the supervised release term, he would not have pled guilty to the offense.
On appeal, Shaw has not provided any evidence or an affirmative representation that
he would not have pled guilty if correctly informed of the supervised release term; and by
pleading guilty to the offense, he received a reduction in his advisory Guidelines range for
imprisonment. Moreover, when he was correctly informed of the supervised release term
in his presentence report at sentencing, he did not object or seek to withdraw his guilty
plea. Although “erroneous sentencing information given during a Rule 11 colloquy cannot
be cured by contrary information later contained in a PSR,” United States v. Lockhart, 947
F.3d 187, 192 (4th Cir. 2020) (en banc), a defendant’s “failure to move to withdraw his
guilty plea after learning of the mandatory minimum through the PSR is some evidence
that he would have entered the plea regardless,” Massenburg, 564 F.3d at 344.
We therefore conclude that Shaw’s guilty plea is valid. We also find the remaining
issues raised in the Anders and pro se briefs without merit. Anders counsel raises the issue
of whether Shaw’s prison sentence at the bottom of his Guidelines range is reasonable; and
in his pro se briefs, Shaw asserts ineffective assistance and sentencing claims.
Ineffective assistance of counsel claims are typically “litigated in the first instance
in the district court, the forum best suited to developing the facts necessary to determining
the adequacy of representation during an entire trial,” Massaro v. United States, 538 U.S.
500, 505 (2003), but we are permitted to and will consider such claims “on direct review
where the ineffectiveness of counsel ‘conclusively appears in the trial record itself,’”
4 USCA4 Appeal: 23-4345 Doc: 44 Filed: 12/23/2024 Pg: 5 of 7
United States v. Freeman, 24 F.4th 320, 331 (4th Cir. 2022) (en banc). To establish a claim
of ineffective assistance of counsel, a defendant must show (1) that counsel’s performance
was not objectively reasonable and (2) that counsel’s deficient performance prejudiced
him. Freeman, 24 F.4th at 326. When the claim is made on direct appeal, we will review
it de novo and “will reverse only if it ‘conclusively appears in the trial record itself that
the defendant was not provided . . . effective representation.’” Id.
“‘This Court reviews all sentences—whether inside, just outside, or significantly
outside the Guidelines range—under a deferential abuse-of-discretion standard.’” United
States v. Claybrooks, 90 F.4th 248, 257 (4th Cir. 2024). “First, we determine whether the
district court has committed significant procedural error.” United States v. McKinnie, 21
F.4th 283, 289 (4th Cir. 2021). “Second, we consider whether the sentence imposed was
substantively reasonable.” Id. “A sentence is substantively unreasonable only where under
the totality of the circumstances, the ‘sentencing court abused its discretion in concluding
that the sentence it chose satisfied the standards set forth in [18 U.S.C.] § 3553(a).’” United
States v. Devine, 40 F.4th 139, 153 (4th Cir. 2022). “‘[A]ny sentence that is within or below
a properly calculated Guidelines range is presumptively reasonable.’” Id.
“‘[A] defendant can only rebut the presumption by demonstrating that the sentence
is unreasonable when measured against the § 3553(a) factors.’” United States v. Everett,
91 F.4th 698, 714 (4th Cir. 2024). “‘[D]istrict courts have extremely broad discretion when
determining the weight to be given each of the § 3553(a) factors.’” United States v. Nance,
957 F.3d 204, 215 (4th Cir. 2020). “As we have previously acknowledged, district courts
have discretion to consider policy decisions underlying the Guidelines, including the
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presence or absence of empirical data and may even reject Guidelines on that basis, but
they are under no obligation to do so.” United States v. Powers, 40 F.4th 129, 138 (4th
Cir. 2022) (internal quotation marks omitted). “[A] district court may choose to adhere to
the Guidelines because they represent the institutional authority of the [Sentencing]
Commission and Congress” or “because the court agrees that the sentencing range they
recommend suits the instant offense and offender.” Id. (internal quotation marks omitted).
We have reviewed the record and conclude that no ineffective assistance of counsel
conclusively appears in the trial record itself; and Shaw should raise his claims, if at all, in
a 28 U.S.C. § 2255 motion. We further conclude that Shaw’s sentence is procedurally and
substantively reasonable. The district court correctly calculated Shaw’s Guidelines range,
conducted an individualized assessment of the facts and arguments presented, and
adequately explained the sentence chosen; and under the totality of the circumstances, the
district court did not abuse its discretion in concluding that its sentence satisfied the
standards under 18 U.S.C. § 3553(a). As for Shaw’s pro se claim regarding Amendment
821, the district court properly sentenced him based on the Sentencing Guidelines in effect
at the time of sentencing; and we decline to consider this claim without prejudice to him
filing a motion under 18 U.S.C. § 3582(c)(2). See United States v. McCoy, 804 F.3d 349,
353 (4th Cir. 2015); United States v. Brewer, 520 F.3d 367, 373 (4th Cir. 2008).
Accordingly, we affirm the district court’s judgment. This court requires that
counsel inform Shaw, in writing, of his right to petition the Supreme Court of the United
States for further review. If Shaw 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
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withdraw from representation. Counsel’s motion must state that a copy thereof was served
on Shaw. We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED