US v. Roy Locklear, No. 13-4718 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4718 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROY LEE LOCKLEAR, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Louise W. Flanagan, District Judge. (7:13-cr-00032-FL-2) Submitted: May 30, 2014 Decided: June 4, 2014 Before WILKINSON, GREGORY, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Joseph A. DiRuzzo, III, FUERST ITTLEMAN DAVID & JOSEPH, PL, Miami, 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 Unpublished opinions are not binding precedent in this circuit.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: Roy Lee Locklear pleaded guilty pursuant to a written plea agreement intent to violation to conspiracy distribute of 21 280 U.S.C. to grams distribute or more §§ 841(b)(1)(A), sentenced to 262 months imprisonment. and of possess cocaine 846 (2012), with base, in and was On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), certifying appeal, but that questioning there the are no district meritorious court s issues compliance for with Federal Rule of Criminal Procedure 11 and the reasonableness of the sentence. guilty plea In his pro se brief, Locklear argues that: his was not knowing and voluntary; his sentence is procedurally unreasonable because the district court erred in failing to grant a downward adjustment for his minor role in the conspiracy and for his mental state, and improperly applied a firearm enhancement; unreasonable. and his sentence is substantively The Government declined to file a brief. We affirm. We have not considered the validity of Locklear s appeal waiver because the Government does not assert it. Further, Locklear s claim that his plea counsel rendered ineffective assistance is more appropriately raised in a 28 U.S.C. § 2255 (2012) motion, in order to allow adequate development of the record. See United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). 2 Because Locklear did not move in the district court to withdraw his guilty plea, we review the Rule 11 hearing for plain error. Cir. United States v. Martinez, 277 F.3d 517, 525 (4th 2002). To prevail under this standard, Locklear must establish that an error occurred, was plain, and affected his substantial rights. Henderson v. United States, 133 S. Ct. 1121, 1126 (2013); United States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009). Our review of the record establishes that the district court substantially complied with Rule 11 s requirements, ensuring that Locklear s plea was knowing and voluntary. We under a review Locklear s deferential sentence abuse-of-discretion United States, 552 U.S. 38, 41 (2007). consideration of both the for standard. the district court v. and substantive Id. at 51; United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). whether Gall This review requires procedural reasonableness of the sentence. reasonableness, correctly After determining calculated the advisory Guidelines range, we must decide whether the court considered the 18 U.S.C. § 3553(a) (2012) factors, analyzed the arguments presented by the selected sentence. parties, and sufficiently explained the Lynn, 592 F.3d at 575-76; United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). 3 Once we have determined that the sentence is free of procedural tak[ing] error, consider account into we the Gall, 552 U.S. at 51. its substantive totality of the reasonableness, circumstances. If, as here, the sentence is within the appropriate Guidelines range, we presume that the sentence is substantively reasonable. United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008). Such a presumption is rebutted only if the defendant demonstrates that the sentence is unreasonable when measured against the § 3553(a) factors. Montes-Pineda, 445 F.3d 375, 379 (4th United States v. Cir. 2006) (internal quotation marks omitted). We have carefully considered the sentencing challenges raised by counsel and by Locklear in his pro se supplemental brief. We conclude that the district court correctly calculated Locklear s advisory Guidelines range, heard argument from counsel, and provided Locklear an opportunity to allocute. The court 262 explained that the within-Guidelines sentence of months imprisonment was warranted in light of the nature and circumstances of the drug conspiracy, Locklear s history and characteristics, and the need to promote respect for the law, to afford adequate deterrence, and to protect the public. Neither counsel nor Locklear offers any grounds to rebut the presumption on appeal that the within-Guidelines sentence is substantively 4 reasonable. Accordingly, we conclude that the district court did not abuse its discretion in sentencing Locklear. Finally, in accordance with Anders, we have reviewed the remainder of the record in this case and have found no meritorious issues for appeal. court s judgment. This We therefore affirm the district court requires that counsel inform Locklear, in writing, of the right to petition the Supreme Court of the United States for further review. that a petition be filed, but counsel If Locklear requests 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 Locklear. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 5
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