US v. Jeremy Barr, No. 13-4297 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4297 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JEREMY JEROD BARR, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:12-cr-00061-RBH-1) Submitted: September 9, 2013 Before WILKINSON and Senior Circuit Judge. THACKER, Decided: Circuit September 13, 2013 Judges, and HAMILTON, Affirmed by unpublished per curiam opinion. William F. Nettles, IV, Assistant Federal Public Defender, 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 Unpublished opinions are not binding precedent in this circuit.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: Jeremy agreement, to Jerod using Barr and pled guilty, carrying a pursuant firearm to during a and plea in relation to and possessing a firearm in furtherance of a drug trafficking (2006). crime, The in court violation sentenced of Barr 18 to sentence of sixty months imprisonment. U.S.C. the § 924(c)(1)(A) mandatory minimum On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal but questioning whether the district court complied with Fed. R. Crim. P. 11 in accepting Barr s plea and whether Barr s sentence is reasonable. Barr was advised of his right to file a pro se supplemental brief, but he did not do so. We affirm. Because Barr did not move in the district court to withdraw his guilty plea, we review the Rule 11 hearing for plain error. Cir. 2002). United States v. Martinez, 277 F.3d 517, 525 (4th To establish plain error on appeal, Barr must show: (1) there was error; (2) the error was plain; and (3) the error affected his substantial rights. U.S. 725, 732 (1993). United States v. Olano, 507 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. States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009). 2 United After reviewing the transcript of Barr s guilty plea hearing pursuant to Anders, we conclude that the district court substantially complied with Rule 11 in accepting Barr s guilty plea and that any omission by the court did not affect Barr s substantial rights. See Fed. R. Crim. P. 11(b)(2) (mandating, among other requirements, that court ascertain that plea did not result from promises not contained in plea agreement); Massenburg, 564 F.3d at 344 ( [T]he mere existence of an error cannot satisfy the requirement that [defendant] show that his substantial rights were affected. ); see also United States v. Escamilla-Rojas, 640 F.3d 1055, 1062 (9th Cir. 2011) (holding that there is no plain error when nothing in record suggests that [defendant s] plea would have changed if the . . . [court] had expressly complied with Rule 11(b)(2)). district court ensured that the plea was Critically, the supported by an independent factual basis, that Barr entered the plea knowingly and voluntarily, charge to which and that Barr understood he pled guilty, the the maximum nature and of the mandatory minimum penalties he faced, and the rights he relinquished by pleading guilty. Fed. R. Crim. P. 11(b)(1); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). Although the transcript of the plea colloquy suggests that counsel promised Barr he would receive the Guidelines sentence of sixty months by pleading guilty, the court confirmed 3 that Barr understood the court was not bound by the Guidelines recommendation. See United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992) ( [I]f the information given by the court at the Rule 11 hearing corrects or clarifies the earlier erroneous information . . . [from] defendant s attorney and the defendant admits to understanding the court s advice, the criminal justice system must be able to rely on the subsequent dialogue between the court and defendant. ). plea agreement stated that any sentencing attorney did not constitute a promise. Moreover, Barr s prediction by his And, in any event, the district court imposed the precise sentence counsel advised Barr he would receive. Accordingly, we discern no plain error in the district court s acceptance of Barr s guilty plea. We review Barr s sentence for reasonableness under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). A sentence is procedurally reasonable calculates if the court properly the defendant s advisory Guidelines range, gives the parties an opportunity to argue for an appropriate sentence, considers the 18 U.S.C. § 3553(a) (2006) factors, does not rely on clearly erroneous facts, and sufficiently explains the selected sentence. Id. at 49-51. After reviewing the sentencing transcript pursuant to Anders, we reasonable. conclude We also that Barr s conclude that 4 sentence Barr s is procedurally mandatory minimum sentence is substantively reasonable. See United States v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008) (holding that [a] statutorily required [mandatory minimum] sentence . . . is per se reasonable ). In remainder accordance of the with record in meritorious issues for appeal. court s judgment. Anders, this we case have and reviewed have the found no We therefore affirm the district This court requires that counsel inform Barr, in writing, of the right to petition the Supreme Court of the United States for further review. If Barr 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 Barr. 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 5
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