US v. Kevin Carlton, No. 10-4669 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4669 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEVIN CARLTON, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:09cr-00444-RWT-3) Submitted: December 7, 2010 Decided: January 4, 2011 Before GREGORY, DUNCAN, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Steven H. Levin, Baltimore, Maryland, for Appellant. Barbara Suzanne Skalla, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kevin sentence Leroy imposed Carlton following appeals guilty his the plea, fifty-two-month pursuant to a written plea agreement, to two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (2006). Counsel for Carlton filed a brief in this court in accordance with Anders v. California, 386 U.S. 738 (1967), certifying that there are no non-frivolous issues for appeal, but questioning whether: (1) Carlton s guilty plea was valid under Federal Rule of Criminal Procedure 11 ( Rule 11 ); and (2) the court imposed an unreasonable sentence. Carlton filed a pro se supplemental brief, the arguing that (1) Government breached the plea agreement; and (2) he received ineffective assistance of counsel because he was not advised that he could withdraw his guilty plea. Because Carlton did not move to withdraw his guilty plea in the district court or raise any objections to the Rule 11 colloquy, the colloquy is reviewed for plain error. United States v. General, 278 F.3d 389, 393 (4th Cir. 2002); United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002). To demonstrate plain error, a defendant must show that: (1) there was an error; (2) the error was affected his substantial rights. U.S. 725, 732 (1993). A plain; (3) the error United States v. Olano, 507 defendant s 2 and substantial rights are affected if the error influenced the defendant s decision to plead guilty and impaired his ability to evaluate with eyes open the direct attendant responsibility. risks of accepting criminal United States v. Goins, 51 F.3d 400, 402-03 (4th Cir. 1995) (internal quotation marks omitted); see also 277 Martinez, demonstrate F.3d that at he 532 would (holding not a defendant pled guilty but adequacy of have that must for the Rule 11 error). Counsel challenges the the proceeding but does not specify any deficiencies. A review of the record reveals that the district court complied with the requirements knowing and of Rule 11, voluntary, ensuring that he that Carlton s understood the plea rights he was was giving up by pleading guilty and the sentence he faced, and that he committed the offenses to which he pled guilty. Therefore, we hold that Carlton s guilty plea was knowing and voluntary. Next, counsel Carlton s sentence. challenges the reasonableness of We review a sentence imposed by a district court under a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 45 (2007); United States v. Lynn, 592 F.3d 572, 578-79 (4th Cir. 2010) (abuse of discretion standard of review applicable when defendant properly preserves a claim arguments of sentencing from [18 error U.S.C.] in district § 3553 3 court [2006] [b]y for a drawing sentence different than reviewing the the one ultimately sentence for imposed ). significant We begin procedural by error, including such errors as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based adequately on explain clearly the erroneous chosen facts, sentence or failing including explanation for any deviation from the Guidelines. U.S. at 51. the to an Gall, 552 If there are no procedural errors, we then consider substantive reasonableness of the sentence, account the totality of the circumstances. taking into United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). When rendering a sentence, the district court must make an individualized presented. Cir. 2009) assessment based on the facts United States v. Carter, 564 F.3d 325, 328 (4th (quoting Gall, 552 U.S. at 50). Accordingly, a sentencing court must apply the relevant § 3553(a) factors to the particular facts presented and must state in open court the particular reasons that support its chosen sentence. The court s explanation need not be exhaustive; it must Id. be sufficient to satisfy the appellate court that [the district court] has considered the parties arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority. 4 United States v. Boulware, 604 F.3d 832, 837 (4th Cir. 2010) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)). We conclude that the sentence imposed by the district court was both procedurally and substantively reasonable. The district court used the correct Guidelines range and understood that it was advisory. see U.S. Sentencing (sentencing table) It imposed a within-Guidelines sentence, Guidelines (2009), Manual considered ( USSG ) both ch. 5, parties pt. A arguments and the § 3553(a) factors, and provided a clear explanation for its decision. Counsel questions the court s deviation from the terms of the plea agreement * but correctly concludes that the court did not err when it enhanced Carlton s offense level by three levels. The district court was not bound by the Government s recommendation of a certain sentence or sentencing range in the plea agreement. Fed. R. Crim. P. 11(c)(1)(B). Accordingly, we hold that the sentence imposed by the district court was reasonable. In his pro se supplemental brief, Carlton argues that the Government breached the plea agreement because he agreed to a sentence of thirty-three to forty-one months imprisonment but * In the plea agreement, the Government mistakenly suggested that Carlton was subject to a two-level enhancement pursuant to USSG § 3C1.2, rather than the appropriate three-level enhancement pursuant to USSG § 3C1.3. 5 received a fifty-two month sentence. (Pro Se Br. at 1). Although a breach of a plea agreement by the government can invalidate an appellate waiver, see generally Santobello v. New York, 404 U.S. 257, 262 (1971) (stating that when a plea rests in any significant degree on a promise or agreement of the prosecutor, . . . such promise must be fulfilled ), no party is obligated to provide more than is specified in the agreement itself. United States v. Peglera, 33 F.3d 412, 413 (4th Cir. 1994) (citations omitted). In other words, the government is held only to those promises that it actually made. Id. We hold that the Government did not breach the plea agreement. that Carlton s plea agreement did not contain a promise Carlton would be forty-one month range. that the sentencing district sentenced within the court is not and bound has the by a sentence agreement s incorrect calculation. at the authority sentence up to the ten-year statutory maximum. requested to The signed agreement specifically states recommendation Government thirty-three the low agreement s to impose a Furthermore, the end of the plea Thus, the Government did not breach the plea agreement. Finally, Carlton claims that counsel rendered ineffective assistance by failing to inform him that he could withdraw his guilty plea at sentencing. Claims of ineffective assistance of counsel are not cognizable on direct appeal unless 6 the record conclusively ineffective assistance. establishes that counsel counsel provided United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). record that was Because there is no evidence in the ineffective, we hold that Carlton s claim is not ripe for review in this appeal; rather, it must be asserted, should Carlton wish to do so, in an appropriate motion for post-conviction relief. In accordance with Anders, we have examined the entire record and find no other meritorious issues for appeal. therefore affirm the district court s judgment. This We court requires that counsel inform Carlton, in writing, of the right to petition the Supreme Court of the United States for further review. If Carlton requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Carlton. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 7
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