US v. Phillip Furr, No. 13-4397 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4397 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PHILLIP SCOTT FURR, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, Chief District Judge. (4:10-cr-01043-TLW-1) Submitted: November 27, 2013 Decided: December 23, 2013 Before DAVIS, KEENAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Ray Coit Yarborough, Jr., LAW OFFICE OF RAY COIT YARBOROUGH, JR., Florence, South Carolina, for Appellant. Alfred William Walker Bethea, Jr., Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Phillip firearms by a Scott Furr convicted pled felon, guilty in to possession violation of 18 of U.S.C. §§ 922(g)(1), 924(e) (2012), but preserved his right to appeal the district court s denial of his motion to suppress under Franks v. Delaware, 438 U.S. 154 (1978). The district court originally imprisonment. appeal, sentenced the Furr to Government 250 sought months remand of the On case for resentencing so that it could move for an additional one-level downward adjustment for acceptance of responsibility pursuant to the terms Sentencing of the conditional Guidelines agreement. ( USSG ) Manual plea § 3E1.1(b) See U.S. (2012). We granted the Government s motion, vacated Furr s sentence, and remanded for resentencing. At the resentencing hearing, the court granted the additional one-level downward adjustment for acceptance of responsibility to Furr s advisory Guidelines range and sentenced Furr to 228 months imprisonment. Furr now judgment. Counsel California, 386 meritorious grounds appeals has U.S. filed 738 for the district a brief (1967), appeal pursuant stating but court s that questioning to amended Anders v. there are whether no the district court complied with Fed. R. Crim. P. 11 in accepting Furr s guilty plea and whether Furr s sentence is reasonable. 2 Furr has filed a pro se supplemental brief, in which he raises several challenges to his sentence denial of the motion to suppress. and the district court s We affirm. Initially, we conclude that some of the issues Furr raises in his mandate rule. pro se supplemental brief are barred by the See Volvo Trademark Holding Aktiebolaget v. Clark Mach. Co., 510 F.3d 474, 481 (4th Cir. 2007) (providing that [t]he mandate rule is a specific application of the law of the case doctrine to cases that have been remanded on appeal). Although Furr challenges the district court s application of the armed career criminal enhancement and argues that the Government breached the plea agreement by seeking the enhancement, Furr has waived appellate review of those issues by failing to raise them in his first appeal. See United States v. Pileggi, 703 F.3d 675, 680 (4th Cir. 2013) (holding that party is not permitted to use the accident of a remand to raise an issue that it could just as well have raised in the first appeal (internal quotation marks and alterations omitted)). Next, Furr argues in his pro se supplemental brief, as he did in his first appeal, that the district court erred by denying his msotion to suppress. We review the factual findings underlying the district court s denial of a motion to suppress for clear error and the court s 3 legal conclusions de novo. United States v. Kelly, 592 F.3d 586, 589 (4th Cir. 2010); see United States v. Spears, 673 F.3d 598, 604-05 (7th Cir.) (applying same standards to denial of motion following Franks hearing), cert. denied, 133 S. Ct. 232 (2012). bears a heavy hearing. 1994). burden in establishing the A defendant need for a Franks United States v. Jeffus, 22 F.3d 554, 558 (4th Cir. A defendant must make a substantial preliminary showing that a false statement critical to a finding of probable cause made knowingly and intentionally, or with reckless disregard for the truth, was included in the warrant affidavit. See Franks, 438 U.S. at 155-56; United States v. Clenney, 631 F.3d 658, 663 (4th Cir. 2011). If the court conducts a hearing and finds that the affiant committed perjury or manifested a reckless disregard for the truth, the tainted material must be set aside. U.S. at 156. Franks, 438 If the remainder of the search warrant affidavit is insufficient to support a probable cause finding, then the search warrant must excluded. Id. information in be The the voided issue and is affidavit the not fruits whether supporting of the the the search challenged warrant is ultimately found to be truthful, but whether the information .. . [was] believed or appropriately accepted by the affiant as true. Id. at 165. 4 Upon our review of the transcript of the Franks hearing, we conclude that the district court did not err in finding that the officers did not provide false information to the magistrate judge or manifest a reckless disregard for the truth. of The district court reasonably concluded that all three the believed officers or involved in appropriately obtaining accepted the that search the offered to support issuance of the warrant was true. warrant information Id. Turning next to the validity of Furr s guilty plea, counsel questions whether the district court complied with Rule 11 in accepting Furr s plea. Because Furr did not move in the district court to withdraw his guilty plea, we review the Rule 11 hearing for plain error. 517, 525 (4th Cir. 2002). Furr must show: plain, Henderson and v. (3) United States v. Martinez, 277 F.3d To establish plain error on appeal, (1) there is an error, (2) the error is the United error States, affect[s] 133 S. substantial Ct. 1121, rights. 1126 (2013) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)). In the guilty plea context, a defendant meets his burden by showing a reasonable probability that he would not have pled guilty but for the Rule 11 omission. United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009). 5 Upon our review of the transcript of Furr s guilty plea hearing, we conclude that the district court substantially complied with Rule 11 in accepting Furr s plea and that any omission by the court did not affect Furr s substantial rights. See Fed. R. Crim. P. 11(b)(1)(E) (mandating that court explain right against compelled self-incrimination); Massenburg, 564 F.3d at 344 (holding that the mere existence of an error cannot satisfy the requirement that [defendant] show that his substantial rights were affected ); United States v. Stead, 746 F.2d 355, 356-57 (6th Cir. 1984) (concluding that failure to advise defendant of right against compelled self-incrimination did not require guilty plea to be set aside). district court voluntary and ensured supported that by a Furr s plea sufficient Moreover, the was knowing factual and basis. See United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). Next, both counsel and reasonableness of Furr s sentence. for reasonableness standard. sentence under a Furr question We review Furr s sentence deferential abuse-of-discretion Gall v. United States, 552 U.S. 38, 41 (2007). is procedurally reasonable the if the court A properly calculates the defendant s advisory Guidelines range, gives the parties an opportunity to argue for an appropriate sentence, 6 considers the 18 U.S.C. § 3553(a) factors, does not rely on clearly erroneous facts, and sufficiently explains the selected sentence. Id. at 49-51. In his pro se supplemental brief, Furr argues that the district court erred presentence report opportunity to procedure used (1) ( PSR ); object at by to the failing (2) the by to order failing revised resentencing to PSR; hearing a revised give and him in (3) the the generally. We conclude that the record directly contradicts Furr s assertions: the court specifically gave counsel an opportunity to suggest an alternative party procedure accepted probation conclude the officer that Furr at the court s hearing. invitation or a revised PSR. waived any prepare has resentencing requested Neither that Accordingly, challenge related to the we the procedure employed by the district court at the resentencing hearing. See Olano, 507 intentional relinquishment U.S. or at 733 abandonment ( [W]aiver of a known is the right. (internal quotation marks omitted)); United States v. Claridy, 601 F.3d 276, 284 n.2 (4th Cir. 2010) ( When a claim of . . . error has been waived, it is not reviewable on appeal. ); see also United States v. Taylor, 659 F.3d 339, 348 (4th Cir. 2011) ( [T]he defendant is deemed bound by the acts of his lawyeragent. (internal quotation marks omitted)). 7 Finding consider the no significant substantive procedural reasonableness of error, Furr s we now sentence. Gall, 552 U.S. at 51. In reviewing a sentence for substantive reasonableness, we examine[] circumstances, and, if the the sentence totality is within of the the properly calculated Guidelines range, apply a presumption on appeal that the sentence is substantively reasonable. United States Mendoza-Mendoza, 597 F.3d 212, 216-17 (4th Cir. 2010). v. Such a presumption is rebutted only if the defendant shows that the sentence is factors. unreasonable when measured against the § 3553(a) United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks omitted). In his pro se supplemental brief, Furr argues that the district court erred by distinguishing between the facts of his case and the facts of Pepper v. United States, 131 S. Ct. 1229 (2011) (permitting district court to consider post-sentencing rehabilitation as appropriate basis for variance under § 3553(a) on resentencing), on the ground that Pepper demonstrated that he had been making significant efforts at rehabilitation outside prison, while environment. Furr s efforts were all within the prison We disagree with the suggestion that the district court erred or abused its discretion in distinguishing Pepper. It was not unreasonable for the court to conclude that Pepper s 8 significant progress outside of prison was more notable than Furr s efforts at rehabilitation while in prison and under the threat of sanctions for noncompliance. Notably, efforts at the district rehabilitation. court did Although not the ignore court Furr s explicitly credited Furr for his efforts, the court also considered the serious conduct of the underlying offense; Furr s significant prior record, involving which includes particularly demonstrated lack of many violent vulnerable respect § 3553(a)(1), (2)(A)-(D). for the felonies, victims; law. and See 18 some Furr s U.S.C. Accordingly, we conclude that Furr has not shown that his sentence is unreasonable when measured against the § 3553(a) factors. Finally, although Furr purports to challenge the district court s text order denying his post-sentence motion for reconsideration, Furr did not effectively appeal that order. See Smith v. Barry, 502 U.S. 244, 248 49 (1992) (holding that appellate brief may otherwise complies serve with as notice rules of appeal governing proper only if timing it and substance). In accordance with Anders, we have reviewed the record and have found no meritorious grounds for appeal. affirm the district court s amended 9 judgment. We therefore This court requires that counsel inform Furr, in writing, of the right to petition the Supreme Court of the United States for further review. If Furr requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in representation. this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Furr. We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 10

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