US v. Terrance Goodman, No. 13-4494 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4494 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TERRANCE GOODMAN, a/k/a Fresh, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, Chief District Judge. (7:13-cr-00007-D-1) Submitted: March 28, 2014 Before NIEMEYER Circuit Judge. and KING, Decided: Circuit Judges, and April 11, 2014 DAVIS, Senior Affirmed by unpublished per curiam opinion. Neal Gary Rosensweig, P.A., Hollywood, Florida, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Terrance Goodman pled guilty, without a plea agreement, to one count of conspiracy to possess with the intent to distribute and distribute heroin, in violation of 21 U.S.C. § 846 (2012), aiding and and four abetting, counts in of distribution violation (2012) and 18 U.S.C. § 2 (2012). of 21 of U.S.C. heroin and § 841(a)(1) The district court sentenced Goodman to concurrent 125-month terms on each count. In doing so, the district court upwardly departed from a Guidelines range of 57 to 71 months to a range of 120 to 125 months under U.S. Sentencing Guidelines Manual § 4A1.3(a)(1) (2012), based on the inadequacy of Goodman s criminal history category and his risk of recidivism. if its In addition, the district court stated that even Guidelines calculations were incorrect or the upward departure was erroneous, it would impose the same sentence as a variance (2012). under the factors set forth in 18 U.S.C. brief pursuant § 3553(a) Goodman timely appealed. Counsel has filed a to Anders v. California, 386 U.S. 738 (1967), finding no meritorious grounds for appeal but questioning whether Goodman s guilty plea was knowing and voluntary and challenging a four-level enhancement under USSG § 3B1.1(a) for Goodman s role as a leader or organizer of the criminal activity, and the reasonableness of Goodman s above-Guidelines range 2 sentence. In his pro se supplemental brief, Goodman challenges the validity of his sentence and argues that he was denied effective assistance of counsel at sentencing. For the reasons that follow, we affirm. Goodman did not seek to withdraw his guilty plea in the district court. Therefore, we review the Fed. R. Crim. P. 11 hearing for plain error. 517, 525 (4th Cir. United States v. Martinez, 277 F.3d 2002). [T]o standard, [Goodman] must show: satisfy the plain error (1) an error was made; (2) the error is plain; and (3) the error affects substantial rights. United States 2009). v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. Our review of the plea hearing transcript revealed no errors and that the district court fully complied with Rule 11 and properly ensured that Goodman s guilty plea was knowing and voluntary and supported by a sufficient factual basis. United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). Turning to Goodman s sentence, the district court imposed the 125-month sentence as an upward departure sentence and, alternatively, as a variance sentence. [A] sentencing court has flexibility in fashioning a sentence outside of the Guidelines range. United States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir. 2011) (citing Rita v. United States, 551 U.S. 338, 356 (2007)). variance or a When the district court imposes either a departure sentence, this Court consider[s] whether the sentencing court acted reasonably both with respect 3 to its decision to impose such a sentence and with respect to the extent of the divergence from the sentencing range. States v. Hernandez-Villanueva, 2007). A larger justification. 473 variance F.3d requires 118, 123 more Diosdado-Star, 630 F.3d at 366. United (4th Cir. substantial We will affirm a variant sentence if the § 3553(a) factors, on the whole, justified the sentence imposed. Id. at 367 (internal quotation marks omitted). In fashioning the 125-month sentence, the court took into account Goodman s pattern of receiving lenient punishment for his crimes and then quickly reoffending upon release, his history of violence and involvement with weapons, his pride in his gang membership and leadership, and the seriousness of his offenses of conviction. The court credited the fact that Goodman received a GED and was intelligent, but found that these positives were countered by his extraordinary level of violence and almost certain likelihood, 100 percent, of recidivism. All of these considerations by the court speak directly to several § 3553(a) factors. (a)(2)(B), (a)(2)(C). See 18 U.S.C. § 3553(a)(1), (a)(2)(A), Given the district court s consideration of the parties arguments and the § 3553(a) sentencing factors, and its justified articulation the of imposition reasons of an linked upward to § 3553(a) variance that sentence, we defer to the district court s determination as to the extent of 4 the variance. (4th Cir. United States v. Hargrove, 701 F.3d 156, 163-64 2012) (affirming variance from zero-to-six-month Guidelines range to sixty-month sentence), cert. denied, 133 S. Ct. 2403 (2013); Diosdado-Star, 630 F.3d at 366-67 (affirming variance sentence six years greater than Guidelines range because sentence was based on the district court s examination of relevant § 3553(a) factors). We conclude that the district court acted reasonably in imposing the variance sentence. Where, as here, a district court offers alternate and independent rationales for a sentence outside the Guidelines range, we will uphold the sentence if one of the justifications is reasonable even if we find fault with the other. United States v. Rivera-Santana, 668 F.3d 95, 104 (4th Cir.), cert. denied, 133 S. Ct. 274 (2012); United States v. Evans, 526 F.3d 155, 165 (4th Cir. 2008). Therefore, assuming without deciding that the there upward was error departure, Goodman s sentence in Guidelines or both, we is reasonable calculations or the nevertheless conclude that because district court the explicitly stated that it would apply the same sentence as an alternative variance sentence considering the § 3553(a) factors, and the variance sentence is reasonable. In accordance with Anders, we have thoroughly reviewed the record and conclude that there are no meritorious grounds 5 for appeal. * court. We We therefore affirm the judgment of the district deny counsel s motion to withdraw. This court requires that counsel inform Goodman, in writing, of the right to petition the Supreme Court of the United States for further review. If Goodman requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may renew his motion to withdraw from representation. Counsel s motion must state that a copy thereof was served on Goodman. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED * We have considered the issues raised in Goodman s pro se supplemental brief and conclude that they are without merit. 6

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