United States v. Terrence McGuirk

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 29, 2022
• Docket: 20-4461
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4461

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TERRENCE JOSEPH MCGUIRK, a/k/a Terrence McGuirk, a/k/a Bunkie,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Irene C. Berger, District Judge. (2:18-cr-00225-5)

Submitted: July 28, 2022 Decided: September 29, 2022

Before NIEMEYER, MOTZ, and RUSHING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Charles T. Berry, Kingmont, West Virginia, for Appellant. Joshua Clarke Hanks, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

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PER CURIAM:

Terrence Joseph McGuirk pled guilty, pursuant to a written plea agreement, to

conspiracy to distribute a mixture or substance containing a detectable amount of

methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 846.

The district court sentenced McGuirk to 300 months’ imprisonment, followed by five years

of supervised release. On appeal, counsel filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), finding no meritorious issues for appeal but questioning whether there

was prosecutorial misconduct, whether trial counsel was ineffective, and whether the

district court substantially complied with Fed. R. Crim. P. 11 in accepting McGuirk’s guilty

plea. Although McGuirk filed a pro se supplemental brief, we granted his subsequent

motion to withdraw his brief. The Government did not file a responsive brief. For the

reasons that follow, we affirm.

McGuirk first argues that the prosecutor engaged in misconduct. Because McGuirk

did not raise his claim of prosecutorial misconduct in the district court, we review this issue

for plain error. United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005). To show that

the district court plainly erred, McGuirk “must establish that (1) an error occurred; (2) the

error was plain; and (3) the error affected his substantial rights.” United States v. Combs,

36 F.4th 502, 505 (4th Cir. 2022) (cleaned up). Even if these three requirements are met,

“we exercise our discretion to correct the error only if it seriously affects the fairness,

integrity or public reputation of judicial proceedings.” Id. (cleaned up). “To prevail on a

claim of prosecutorial misconduct, a defendant must show (1) that the prosecutor’s remarks

and conduct were, in fact, improper and (2) that such remarks or conduct prejudiced the

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defendant to such an extent as to deprive the defendant of a fair trial.” United States v.

Allen, 491 F.3d 178, 191 (4th Cir. 2007). McGuirk contends that the prosecutor’s offer to

refrain from filing an information pursuant to 21 U.S.C. § 851 in exchange for McGuirk

signing the plea agreement constituted prosecutorial misconduct. Specifically, McGuirk

alleges that the prosecutor’s offer constituted a “hollow threat” because McGuirk did not

have two prior convictions for a “serious drug felony” for purposes of 21 U.S.C.

§ 841(b)(1)(A), and thus could never have been subject to a 25-year mandatory minimum.

Having reviewed the record, we conclude that there was no plain error.

McGuirk next argues that his counsel was ineffective. We typically will not review

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), “[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). Similar to his first claim, McGuirk contends that his trial counsel was ineffective

for failing to inform him that the prosecutor’s offer to refrain from filing a § 851

information was a hollow threat. Because the record does not conclusively support

McGuirk’s claim, it “should be raised, if at all, in a 28 U.S.C. § 2255 motion.” Id. at 508.

Third, McGuirk asserts that his guilty plea was not valid. Because McGuirk moved

in the district court to withdraw his guilty plea, we review the district court’s “acceptance

of [the] guilty plea under the harmless error standard.” United States v. Williams, 811 F.3d

621, 622 (4th Cir. 2016). A guilty plea is valid if the defendant voluntarily, knowingly,

and intelligently pleads guilty “with sufficient awareness of the relevant circumstances and

likely consequences.” United States v. Fisher, 711 F.3d 460, 464 (4th Cir. 2013) (internal

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quotation marks omitted). When reviewing a Rule 11 colloquy, “[w]e accord deference to

the trial court’s decision as to how best to conduct the mandated colloquy with the

defendant.” United States v. Moussaoui, 591 F.3d 263, 295 (4th Cir. 2010) (internal

quotation marks omitted). Our review of the plea colloquy confirms that McGuirk

repeatedly demonstrated his understanding of the proceedings and the consequences of his

guilty plea, and that the district court substantially complied with the requirements of

Rule 11.

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

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

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

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

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