US v. Urchel Hill, No. 13-4262 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4262 UNITED STATES OF AMERICA, Plaintiff Appellee, v. URCHEL LAVOY HILL, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:12-cr-00329-TDS-1) Submitted: October 30, 2013 Decided: November 21, 2013 Before KEENAN, WYNN, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen, Federal Public Defender, William C. Ingram, First Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Stephen Thomas Inman, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Urchel Lavoy Hill appeals his conviction after he pled guilty to filing a false tax return, in violation of 26 U.S.C. § 7206(1) (2006), imprisonment. and Hill s his sentence counsel has of filed thirty-six a brief months pursuant to Anders v. California, 387 U.S. 738 (1967), stating that he has found no meritorious issues for appeal, noting that there was nothing in the record to undermine the validity of Hill s plea, and questioning whether the district court erred by denying Hill a downward adjustment for acceptance of responsibility whether the sentence is otherwise reasonable. and Hill filed a pro se supplemental brief, raising additional sentencing issues. We affirm. Hill s counsel raises as a potential issue the validity of Hill s guilty plea but points to no specific error in the Fed. R. Crim. P. 11 hearing. Before accepting a guilty plea, the trial court must conduct a plea colloquy in which it informs the defendant of, and confirms that the defendant comprehends, the rights he is relinquishing by pleading guilty, the charge to which he is pleading, and the maximum possible penalty he faces. Fed. R. Crim. P. 11(b); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). The court also must ensure not that the plea was voluntary and the result of threats, force, or promises not contained in the plea agreement. 2 Fed. R. Crim. P. 11(b)(2). Additionally, the court determine that there is a factual basis for the plea. must Fed. R. Crim. P. 11(b)(3). Because Hill did not seek to withdraw his guilty plea or otherwise preserve any alleged Rule 11 error by timely objection, we review the plea colloquy for plain error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Upon our review we conclude that the district court fully complied with the mandates of Rule 11 in accepting Hill s plea. The court ensured that the plea was knowing and voluntary and supported by an independent factual basis. See DeFusco, 949 F.2d at 116, 119-20. plain Thus, we discern no error and affirm Hill s conviction. Next, Hill and his counsel question the calculation of the Guidelines range and the reasonableness of the sentence. We review a sentence for reasonableness, applying a deferential abuse-of-discretion standard. 38, 41 (2007). committed no We first significant Gall v. United States, 552 U.S. ensure procedural that the error, district such as court improper calculation of the Guidelines range, insufficient consideration of the 18 U.S.C. § 3553(a) (2012) explanation of the sentence imposed. we find examine the the sentence procedurally substantive factors, inadequate Gall, 552 U.S. at 51. reasonable, reasonableness 3 and of we the also If must sentence, tak[ing] into account the totality of the circumstances. Id. A within-Guidelines sentence is presumed reasonable on appeal, United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012), and the defendant bears the burden to rebut the presumption by demonstrating that the sentence is unreasonable when measured against the § 3553(a) factors. 445 F.3d 375, 379 United States v. Montes-Pineda, (4th Cir. 2006) Hill (internal complains quotation marks district court omitted). Although that the imposed sentencing enhancements that were not submitted to a jury or admitted argument. Cir. him, we have previously rejected this See United States v. Blauvelt, 638 F.3d 281, 293 (4th 2011) district by (collecting court erred cases). by Hill declining to also award suggests an that acceptance the of responsibility adjustment after the district court found that he had obstructed justice. * We conclude that the district court did * Neither Hill nor his counsel disputes on appeal the applicability of the obstruction of justice adjustment. Our review of the record pursuant to Anders reveals that the district court did not err plainly or otherwise in finding that a preponderance of the evidence supported the adjustment. See United States v. Greene, 704 F.3d 298, 303-04 (4th Cir. 2013) (discussing plain error standard of review), cert. denied, __ U.S. __, 2013 WL 1808696 (U.S. Oct. 15, 2013) (No. 12-9965); see United States v. Thorson, 633 F.3d 312, 320-21 (4th Cir. 2011) (discussing obstruction of justice enhancement); see also U.S. Sentencing Guidelines Manual ( USSG ) § 3C1.1 & cmt. n.4(C) (2012). 4 not clearly err in refusing to award a downward adjustment for acceptance of responsibility extraordinary §§ 3C1.1 United case[] and 3E1.1 States v. in because which Hill s adjustments may apply. Bartko, 728 USSG F.3d case under § 3E1.1 327, was 345 not both cmt. (4th an [USSG] n.4; Cir. see 2013) (stating standard of review); United States v. Knight, 606 F.3d 171, 176 (4th Cir. 2010) (reviewing claim as factual matter). Next, contrary to Hill s assertion that the Government failed to submit sufficient information to establish that he owed $92,337 in restitution to the Internal Revenue Service for unpaid taxes over a four-year period, Hill amount in the plea agreement. stipulated to the restitution We therefore conclude that Hill s sentence is procedurally reasonable. Finally, substantively maximum Hill suggests unreasonable sentence on his because first that he his received criminal sentence is the statutory conviction. Because Hill s sentence is within a properly calculated Guidelines range and Hill afforded has not such rebutted sentences, substantively reasonable. Pineda, 445 F.3d at 379. its discretion in the we presumption conclude that of the reasonableness sentence is See Susi, 674 F.3d at 289; MontesThus, the district court did not abuse sentencing imprisonment. 5 Hill to thirty-six months In accordance with Anders, we have reviewed the entire record on appeal. appeal We and have therefore found affirm the no meritorious district issues court s for judgment. This Court requires that counsel inform Hill, in writing, of his right to petition the Supreme Court of the United States for further review. If Hill requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in and materials legal before Court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Hill. facts this We dispense with oral argument because the contentions are adequately this and argument Court presented would not in the aid the decisional process. AFFIRMED 6

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