United States v. Terry Sherman

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 29, 2024
• Docket: 23-4384
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4384

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TERRY WAYNE SHERMAN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:21-cr-00070-D-1)

Submitted: July 25, 2024 Decided: July 29, 2024

Before GREGORY, HARRIS, and QUATTLEBAUM, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Robert J. Parrott Jr., PARROTT LAW, Raleigh, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

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PER CURIAM:

In April 2022, Terry Wayne Sherman pled guilty, without the benefit of a written

plea agreement, to conspiracy to possess with intent to distribute 100 grams or more of

heroin, 40 grams or more of fentanyl, and a quantity of crack cocaine, in violation of 21

U.S.C. §§ 841(a), 846, and 15 counts of distributing various narcotics. The district court

imposed a 144-month sentence and a 5-year term of supervised release. On appeal,

Sherman argues that the sentence is procedurally unreasonable and challenges one of the

supervised release conditions. We affirm.

We review “all sentences—whether inside, just outside, or significantly outside the

[Sentencing] Guidelines range—under a deferential abuse-of-discretion standard.” United

States v. Torres-Reyes, 952 F.3d 147, 151 (4th Cir. 2020) (internal quotation marks

omitted). In conducting this review, we must first ensure that the sentence is procedurally

reasonable, “consider[ing] whether the district court properly calculated the defendant’s

advisory [G]uidelines range, gave the parties an opportunity to argue for an appropriate

sentence, considered the 18 U.S.C. § 3553(a) factors, and sufficiently explained the

selected sentence.” Id. (internal quotation marks omitted).

After considering Sherman’s arguments in conjunction with the record, we are

satisfied that the selected sentence, which was below the applicable Guidelines range, is

procedurally reasonable. The district court properly calculated Sherman’s Guidelines

range, evaluated the § 3553(a) factors it deemed most relevant, and provided a meaningful

explanation for the selected sentence. See Gall v. United States, 552 U.S. 38, 49-51 (2007).

Despite Sherman’s assertions to the contrary, we hold that the court both adequately

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responded to Sherman’s arguments in favor of a greater reduction in his sentence and

explained its reasons for not adopting the proffered sentencing recommendation, which,

again, were rooted in the § 3553(a) sentencing factors. Nor do we agree with Sherman’s

position that the district court erred in its sentencing process, see United States v.

Diosdado-Star, 630 F.3d 359, 363-66 (4th Cir. 2011) (holding no procedural error resulting

from court “varying before considering any applicable departures”), or his suggestion that

Diosdado-Star has been abrogated. Accordingly, on this record, we discern no reversible

procedural error in the court’s selection of Sherman’s term of imprisonment.

Sherman also challenges the court’s imposition of a special condition of supervised

release requiring that he submit to warrantless searches. Because Sherman did not

challenge this supervised release condition before the district court—and his arguments for

a lower sentence did not relate to the condition, see United States v. Elbaz, 52 F.4th 593,

611 (4th Cir. 2022), cert. denied, 144 S. Ct. 278 (2023)—we review this issue for plain

error, see United States v. McMiller, 954 F.3d 670, 675 (4th Cir. 2020). “There is plain

error only when (1) an error was made; (2) the error is plain; (3) the error affects substantial

rights; and (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Comer, 5 F.4th 535, 548 (4th Cir. 2021) (internal

quotation marks omitted). Under the third prong, Sherman bears the burden to “show a

reasonable probability that, but for the error, the outcome of the proceeding would have

been different.” United States v. Combs, 36 F.4th 502, 507 (4th Cir. 2022) (internal

quotation marks omitted).

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Upon review, we discern no plain error in the procedural and substantive

reasonableness of the warrantless-search condition. Specifically, to the extent that the

district court did not directly explain why it imposed this condition, the court’s rationale is

“self-evident and unassailable” in that the record clearly establishes that Sherman is a

dedicated drug dealer, with minor children, who has not been deterred from criminality

despite multiple shorter sentences—including a prior term of imprisonment in the Bureau

of Prisons. Elbaz, 52 F.4th at 613 (internal quotation marks omitted). Moreover, Sherman

did not object to the challenged condition, and the court provided a sufficient explanation

for the sentence as a whole. See United States v. Boyd, 5 F.4th 550, 559 (4th Cir. 2021)

(explaining that “if the reasons for a given condition are ‘self-evident,’ and a defendant

fails to raise nonfrivolous objections, a ‘sentence-as-a-whole’ explanation can suffice”

(citation omitted)). Finally, despite Sherman’s suggestion to the contrary, the warrantless-

search condition is consistent with the requirements of 18 U.S.C. § 3583(d) and authorized

under the Guidelines. See accord United States v. Neal, 810 F.3d 512, 520-21 (7th Cir.

2016) (rejecting similar argument that the special condition of supervised release

mandating submission to warrantless searches is only applicable to sex offenders and

recognizing that the Guidelines specifically provide that the warrantless-search condition

“may otherwise be appropriate in particular cases” (internal quotation marks omitted)).

However, even if the district court erroneously imposed the challenged condition, we find

that it did not affect Sherman’s substantial rights or seriously affect the fairness, integrity,

or public reputation of judicial proceedings. We therefore affirm the district court’s

imposition of the challenged supervision condition.

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For these reasons, we affirm the criminal judgment. 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