US v. Lewellyn Vaught, No. 12-4148 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4148 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEWELLYN TERRELL VAUGHT, a/k/a Gee Bee, Defendant - Appellant. No. 12-4149 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DESMON TERRILL BARNHILL, a/k/a T.B., a/k/a Terry, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever, III, Chief District Judge. (7:10-cr-00075-D-2; 7:10-cr-00075-D-1) Submitted: December 21, 2012 Decided: January 7, 2013 Before GREGORY, DUNCAN, and KEENAN, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. W. H. Paramore, III, THE LAW OFFICES OF W. H. PARAMORE, III, Jacksonville, North Carolina; Mark R. Sigmon, GRAEBE HANNA & WELBORN, PLLC, Raleigh, North Carolina, for Appellants. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: A federal grand jury returned a multi-count indictment against Vaught Lewellyn pled Terrell guilty Vaught without a and Desmon plea Terrill agreement to Barnhill. aiding and abetting the distribution of cocaine, in violation of 18 U.S.C. § 2 (2006) and 21 U.S.C.A. § 841(a)(1) (West 2006 & Supp. 2012) (count four), 21 U.S.C.A. without a and distribution § 841(a)(1) plea (count agreement to of cocaine, five). two in violation Barnhill counts of pled of guilty distribution of cocaine, in violation of 21 U.S.C.A. § 841(a)(1) (counts six and eight). The Government later filed a one-count criminal information charging Barnhill with conspiracy to possess with intent to distribute and to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846 (2006) and a two-count criminal information charging Vaught with conspiracy to possess with intent to distribute and to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846 (count one), and possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924 (2006) (count two). Both defendants pled guilty as charged in the informations, pursuant to written plea agreements. The district court calculated Vaught s Guidelines ranges on counts one, four, and five at 168 to 210 months imprisonment and Guidelines sentence on count two at 120 months 3 imprisonment and sentenced Vaught to three concurrent terms of 168 months imprisonment on counts one, four, and five and a concurrent term of 120 months imprisonment on count two. The district all court calculated Barnhill s Guidelines range on three counts to which he pled guilty at 168 to 210 months imprisonment and sentenced him to three concurrent terms of 180 months imprisonment. On appeal, counsel have filed a joint brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal. Counsel for Vaught questions, however, whether the district court erred in adopting the presentence report s calculation of the amount of cocaine base for which Vaught was responsible. questions whether voluntarily made, Barnhill s whether guilty trial Counsel for Barnhill pleas counsel were knowingly rendered and ineffective assistance, and whether Barnhill s sentence is procedurally and substantively reasonable. appeals of defendants appellate rights. The Government moves to dismiss the sentences based on their waivers of Both defendants were informed of their rights to file pro se supplemental briefs, and Vaught has filed a pro se brief raising several challenges, including challenges to his sentences. We dismiss in part and affirm in part. A defendant may waive waiver is knowing and intelligent. 4 the right to appeal if that United States v. Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). Generally, if the district court fully questions a defendant regarding the waiver of his right to appeal during the plea colloquy performed in accordance with Fed. R. Crim. enforceable. United (4th Cir. 2005). to appeal novo. is P. 11, States the v. waiver Johnson, is both 410 valid and 137, 151 F.3d Whether a defendant validly waived his right a question of law this court reviews de United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Our review of the record leads us to conclude that Vaught knowingly and voluntarily waived the right to appeal his 168-month sentence on count one and his 120-month sentence on count two. We further conclude that Barnhill knowingly and voluntarily waived his right to appeal his 180-month sentence imposed with respect to the conspiracy count in the criminal information. We therefore grant the Government s motion to dismiss in part and dismiss the appeals of those sentences. Although Vaught s and Barnhill s appeal waivers insulate those sentences from appellate review, the waivers do not prohibit our review of the non-sentencing claims raised by Barnhill s counsel and Vaught, the sentencing claims raised by counsel in the Anders brief and Vaught in his pro se supplemental brief to the extent they pertain to the sentences imposed on counts four, five, six, and eight of the indictment, 5 Accordingly, we and the remainder of record pursuant to Anders. deny the Government s motion to dismiss the appeals in part. Barnhill s counsel questions whether the district court reversibly erred in accepting his guilty pleas. * Because Barnhill did not move in the district court to withdraw his guilty pleas, the adequacy of the Fed. R. Crim. P. 11 hearings is reviewed for plain error only. United States v. Martinez, 277 F.3d 517, 524-26 (4th Cir. 2002). To demonstrate plain error, a defendant must show: (1) there was error; (2) the error was plain; and (3) the error affected his substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993). In the to guilty plea context, a defendant meets his burden establish that a plain error affected his substantial rights 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). Our hearings review leads us of the transcripts to conclude that of the the guilty district plea court substantially complied with the mandates of Rule 11 in accepting Barnhill s guilty pleas and that the court s omissions did not * The Government moves to dismiss Barnhill s challenge to the acceptance of his guilty pleas. This constitutes, in effect, a motion for summary affirmance of the unwaived claim. This court reserves such a motion for extraordinary circumstances not present here. 4th Cir. R. 27(f). 6 affect Barnhill s transcripts reveal substantial that the rights. district Critically, ensured the pleas the were supported by independent bases in fact and that Barnhill entered the pleas knowingly and voluntarily with an understanding of the consequences. United States v. DeFusco, 949 F.2d 114, 116, 120 (4th Cir. 1991). Accordingly, we discern no plain error in the district court s acceptance of Barnhill s guilty pleas. Next, Barnhill s counsel and Vaught question whether trial counsel sentencing. rendered ineffective assistance prior to After review of the record, we find these claims inappropriate for resolution on direct appeal. Because ineffectiveness of counsel is not conclusively established by the record, Barnhill and Vaught must assert such claims, if at all, in a motion pursuant to 28 U.S.C.A. § 2255 (West Supp. United States v. King, 119 F.3d 290, 295 (4th Cir. 2012). 1997). Turning to the district court s imposition of sentence on counts four, five, six, and eight, we review these sentences for reasonableness standard. This under a deferential abuse-of-discretion Gall v. United States, 552 U.S. 38, 41, 51 (2007). review entails procedural and sentence. Id. at 51. appellate substantive consideration of reasonableness both the of the In determining procedural reasonableness, we consider whether the district court properly calculated the 7 defendant s advisory Guidelines range, gave the parties an opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a) (2006) factors, selected a sentence based on clearly erroneous facts, and sufficiently explained the selected sentence. Id. at 49-51. If the sentence is free of significant procedural error, we review it for substantive reasonableness, tak[ing] into circumstances. account Id. at the 51. If the totality sentence of is the within the properly calculated Guidelines range, we apply a presumption on appeal that the sentence is substantively reasonable. United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). Such a presumption is rebutted only if the defendant shows that the sentence is unreasonable when measured against the § 3553(a) factors. United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks omitted). After review of the record, we conclude that Vaught and Barnhill district both court s fail 147 review); (4th Cir. United establish calculations attributable to them. 125, to States of any the clear error drug in the quantities See United States v. Kellam, 568 F.3d 2009) v. (stating Randall, 171 the standard F.3d 195, of 210-11 (4th Cir. 1999) (explaining that a defendant bears the burden of establishing district that court information relied on in in the presentence calculating 8 the report relevant the drug quantity is incorrect); see also United States v. Powell, 650 F.3d 388, 392 (4th Cir.) (holding that a sentencing court may consider relevant uncorroborated hearsay, sufficient indicia of information before it, provided that the reliability to support including information its has accuracy (internal quotation marks omitted)), cert. denied, 132 S. Ct. 350 (2011). The district court also otherwise correctly calculated the defendants Guidelines ranges, heard argument from counsel, gave Barnhill the opportunity to allocute, and heard allocution from Vaught. The court also considered the § 3553(a) factors with to respect each defendant and provided an adequate explanation of its individualized assessment of those factors in determining the defendants sentences. Defendants do not offer, and our review pursuant to Anders does not reveal, any grounds to rebut the presumption on appeal that their within-Guidelines sentences are substantively reasonable. Accordingly, we conclude that the district court did not abuse its discretion in sentencing Vaught and Barnhill on those counts. Finally, in accordance with Anders, we have reviewed the remainder of the record and have found no meritorious issues for review. Accordingly, we affirm the defendants convictions on all counts and their sentences on counts four, five, six, and eight, and dismiss the appeals of their sentences on counts one, 9 two, and the conspiracy count in the information filed against Barnhill. We also deny as moot Vaught s motion to accelerate case processing. This court requires that counsel inform Vaught and Barnhill, in writing, of their rights to petition the Supreme Court of the United States for further review. If Vaught or Barnhill 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 Vaught or Barnhill. 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. DISMISSED IN PART; AFFIRMED IN PART 10

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