US v. Corey Kerr, No. 12-4964 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4964 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. COREY DEWAYNE KERR, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:11-cr-00219-NCT-1) Submitted: June 13, 2013 Decided: September 23, 2013 Before GREGORY, SHEDD, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Harvey Alexander Carpenter, IV, LAW OFFICES OF H.A. CARPENTER IV, Greensboro, North Carolina, for Appellant. Ripley Eagles Rand, United States Attorney, Graham Tod Green, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Defendant Corey Dewayne Kerr pled guilty to maintaining a residence for the cocaine base. purpose of manufacturing or distributing Approximately six months later, Defendant moved to withdraw his plea, which the district court denied. Defendant district accountable court for sentenced appeal, Defendant denying his 2,414 him argues motion to grams to that of 240 crack months the withdraw his plea cocaine, the prison. in district On court and accountable for 2,414 grams of crack cocaine. Finding by erred finding by him For the reasons discussed below, we affirm. I. Following distribution indicted for a in law two enforcement North conspiracy to Carolina investigation counties, distribute 280 of cocaine Defendant grams or more was of cocaine base in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). Seven months later, the government filed a bill of information further charging Defendant with maintaining three residences for the purpose of manufacturing or distributing cocaine base in violation of 21 U.S.C. §§ 856(a)(1) and (b). In a written plea agreement, Defendant agreed to plead guilty to maintaining a drug-involved residence in exchange for the dismissal of the conspiracy to distribute charge. 2 At Defendant s plea hearing, the district court conducted a Rule 11 plea colloquy during which it informed Defendant that his attorney could not, at that point, accurately calculate his sentencing guideline range. Later during the hearing, Defendant s attorney agreed that there was a factual basis for Defendant s plea, but noted that Defendant did not agree to all of the time frames government s witness. and [drug] J.A. 61. quantities alleged by the Defendant then pleaded guilty at the plea hearing. Subsequently, Defendant sought to withdraw his guilty plea, alleging that his attorney mislead him into pleading guilty by failing to inform him about possible sentencing outcomes. Following a hearing, the district court found that Defendant was properly advised that his attorney could not correctly estimate his sentencing guidelines range before his guilty plea and that his actual sentence could be above or below that range. The court therefore denied Defendant s withdrawal motion. At Defendant s sentencing hearing, several witnesses testified about receiving various amounts of crack cocaine from Defendant. Based on that testimony, the district court found Defendant accountable for 2,414 grams of crack cocaine. The court then sentenced Defendant to 240 months imprisonment. On appeal, Defendant contends that the district court erred by denying his motion to withdraw his guilty plea. 3 He further argues that the district court erred by finding him accountable for 2,414 grams of crack cocaine. II. A. Defendant first challenges the district court s denial of his motion to withdraw his guilty plea. We review the district court s denial of Defendant s motion for abuse of discretion. See United States v. Ubakanma, 215 F.3d 423, 424 (4th Cir. 2000). A defendant may withdraw a guilty plea before sentencing if he can show withdrawal. a fair and just reason for requesting the United States v. Nicholson, 676 F.3d 376, 383 (4th Cir. 2012); Fed. R. Crim. P. 11(d)(2)(B). A properly conducted Rule 11 guilty plea colloquy raises a strong presumption that the plea is final and binding. withdrawal motion, courts Id. at 384. typically When considering a consider (1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary, (2) whether the defendant has credibly asserted his legal innocence, (3) whether there has been a delay between the entering of the plea and the filing of the motion, (4) whether counsel, (5) defendant whether has had close withdrawal will assistance cause of competent prejudice to the government, and (6) whether it will inconvenience the court and 4 waste judicial resources. United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). Defendant contends that he would not have pled guilty if his attorney had properly sentencing outcomes. advised him about the possible Because Defendant does not challenge the district court s Rule 11 colloquy, there is a strong presumption that Defendant s plea is valid and binding. See Nicholson, 676 F.3d at 384. Turning to the Moore factors, we conclude that they do not provide guilty a fair plea. and just Regarding reason the for first withdrawing and fourth Defendant s factors, while Defendant argues that his attorney was ineffective, he has not offered credible evidence that his plea was unknowing or involuntary. The district court told Defendant during his plea hearing that it ranging from would zero sentencing laws. to later determine twenty years, his actual sentence, by applying federal Further, it told Defendant that there is no way anybody today can accurately calculate whatever your Federal Sentencing Guideline Range may eventually be . . . . Your lawyer may be right, but he or she may be way off. . . . [I]f anybody has suggested you re going to receive a sentence of whatever, understand that s just an estimate. remaining relevant factors, they J.A. 56-57. do not favor As to the Defendant: Defendant has not asserted his legal innocence and he filed his 5 withdrawal plea. motion approximately six months after his guilty Accordingly, we conclude that the district court did not abuse its discretion by denying Defendant s motion to withdraw his guilty plea. B. Defendant next contends that the district court erred by finding him accountable for 2,414 grams of crack cocaine. We review a sentence for abuse of discretion. United States, 552 U.S. 38, 51 (2007). Gall v. Under this standard, we first ensure that the district court committed no significant procedural error, such as improperly calculating the Sentencing Guidelines range. Id. In assessing whether a sentencing court properly applied the Guidelines, we review the court s factual findings for clear error. 377, 387 (4th Cir. United States v. Osborne, 514 F.3d 2008). If a sentence is procedurally reasonable, we then consider the substantive reasonableness of the sentence under an abuse-of-discretion standard. Gall, 552 U.S. at 51. For sentencing purposes, the government must prove the drug quantity attributable to a preponderance of the evidence. 431, 441 (4th Cir. 2011). particular defendant by a United States v. Bell, 667 F.3d The district court is afforded broad discretion as to what information to credit in making its drug 6 quantity calculations. (4th Cir. 1996). United States v. Cook, 76 F.3d 596, 604 When the drug quantity is not proven by actual seizures or comparable direct evidence, the sentencing court may approximate the quantity. Bell, 667 F.3d at 441. can testimony rely on lay witness as to the While courts drug quantity, courts should sentence at the low end of the witness s range if the witness s approximation is uncertain. Id. At his sentencing hearing, Defendant testified that he sold approximately 90 grams of crack cocaine during the relevant time period. But the government s three witnesses testified that Defendant sold them in excess of a total of 3,000 grams of crack cocaine during government s that time. witnesses Moreover, in Defendant, the and calculating district The district disbelieved the court drug gave court believed Defendant s amount testimony. attributable [Defendant] the to benefit where the witnesses testified to a drug quantity range. 263. the J.A. Given these facts, we cannot conclude that the district court clearly erred by finding him accountable for 2,414 grams of crack cocaine. III. For the foregoing reasons, we affirm Defendant s conviction and sentence. AFFIRMED 7

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