US v. Dustin Carter, No. 13-4819 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4819 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DUSTIN ALLEN CARTER, Defendant - Appellant. No. 13-4824 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RODERICK D. STEVENS, Defendant - Appellant. No. 13-4827 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAYVON BRYAN RILEY, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:12-cr-00140-BO-3; 7:12-cr-00140-BO-2; 7:12cr-00140-BO-1) Submitted: July 25, 2014 Decided: August 6, 2014 Before WILKINSON, MOTZ, and KEENAN, Circuit Judges. Affirmed in part; dismissed in part by unpublished per curiam opinion. Scott Brettschneider, Uniondale, New York; G. Ryan Willis, WILLIS JOHNSON & NELSON, PLLC, Raleigh, North Carolina; James C. White, LAW OFFICES OF JAMES C. WHITE P.C., Chapel Hill, North Carolina, for Appellants. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Appellants Dustin Allen Carter, Dayvon Bryan Riley, and Roderick D. Stevens pled guilty to conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349 (2012). Stevens also including pled aiding guilty and to abetting additional aggravated Riley and related identity violation of 18 U.S.C. §§ 2, 1028A(a)(1) (2012). charges, theft, in The district court sentenced Carter to 78 months imprisonment, Riley to 156 months imprisonment, and Stevens to 96 months imprisonment. On appeal, each of the Appellants objects to sentencing enhancements applied by the district court. two Carter additionally argues that the district court failed to address his sentencing objections and failed to explain its reasons for selecting the sentence that it did. Riley also argues that his plea was not knowingly made, that the district court violated Fed. R. Crim. ineffective violation. P. 32(e)(2), because he (i)(1)(A), failed to and object that to counsel the Rule was 32 Finally, Stevens argues that counsel was ineffective because he failed to object to certain sentencing enhancements. Relying on the waiver of appellate rights in Riley s and Stevens plea agreements, the Government urges the dismissal of their challenges to the sentencing enhancements and alleged Rule 32 violation. We affirm in part and dismiss in part. 3 We first address Carter s argument that the district court failed to resolve his objections to his sentence enhancements for a loss amount of at least $400,000 and the use of sophisticated means. See U.S. Sentencing Guidelines Manual §§ 2B1.1(b)(1)(H), (b)(10)(C) (2012).Carter failed to meet his burden of presentation United States v. for Terry, (discussing burden). both 916 enhancements F.2d 157, 162 at issue. See (4th Cir. 1990) It was undisputed that the Government had validated more than 800 credit card numbers used in the scheme and that these numbers were sufficient to support a loss amount of $400,000 or more. Although Carter urged the adoption of the usability adopted standard by the Ninth Circuit in United States v. Onyesoh, 674 F.3d 1157, 1159 (9th Cir. 2012), Carter produced no evidence or argument that any of the valid numbers were not useable. Carter also did not address the sophisticated means enhancement at sentencing, and the record supports its application. Therefore, the district court did not clearly err by the adopting report summarily Guidelines with calculations regard to the of the challenged presentence enhancements. United States v. Alvarado Perez, 609 F.3d 609, 612 (4th Cir. 2010). We next address Carter s argument that the district court erred by failing to state its reasons for imposing the sentence that it chose. Carter 4 did not request a below- Guidelines sentence or otherwise object to the district court s explanation of his sentence. for plain error. (4th Cir. Therefore, we review this claim United States v. Powell, 650 F.3d 388, 395 2011). Because the district court imposed the sentence that Carter requested, he cannot show that the court s failure to explain that sentence caused him substantial injury. Id. Turning guilty plea Riley s arguments, was underestimated acknowledged to not the sentencing that he knowing could and range. not rely sentence within the statutory range. he asserts voluntary Riley s on any v. Puckett, 61 F.3d 1092, his because he plea agreement estimate of his Such uncertainty does not prevent a guilty plea from being knowingly made. States that 1099 (4th See United Cir. 1995). Therefore, Riley s failure to correctly estimate his Guidelines range did not affect the validity of his plea. Riley s and Stevens remaining claims, except for their claims of ineffective assistance of counsel, are barred by their appeal waivers. A defendant may waive the right to appeal if that waiver is knowing and intelligent. United States v. Davis, 629 F.3d 349, 354-55 (4th Cir. 2012). Generally, if the district court questions a defendant regarding the waiver of his right to appeal during the plea colloquy performed in accordance with Fed. R. Crim. P. 11, the waiver is valid and enforceable. 5 United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert. denied, 134 S. Ct. 126 (2013). Upon de novo review, see United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010) (stating standard of review), we conclude that Riley and Stevens knowingly and voluntarily waived the right to appeal any sentence not in excess of the applicable Guidelines range on any basis except ineffective assistance of counsel or prosecutorial misconduct unknown at the time of the plea. The record also reveals that the district court fully questioned the defendants regarding the appeal waivers at the Fed. R. Crim. P. 11 hearings. and Riley and Stevens Therefore, the waivers are valid, are barred from challenging the determination of their sentences. Finally, claims of we decline ineffective to reach Riley s of counsel. assistance and Stevens Unless an attorney s ineffectiveness conclusively appears on the face of the record, ineffective assistance addressed on direct appeal. 424, 435 (4th Cir. 2008). claims are not generally United States v. Benton, 523 F.3d Instead, such claims should be raised in a motion brought pursuant to 28 U.S.C. § 2255 (2012), in order to permit sufficient development of the record. United States 2010). Because v. Baptiste, there is 596 F.3d 214, no conclusive 216 n.1 evidence (4th of Cir. ineffective assistance of counsel on the face of the record, we conclude 6 that these claims should be raised, if at all, in a § 2255 motion. Accordingly, affirm the district with court s respect to judgment. Carter s We also appeal, we affirm the validity of Riley s guilty plea, dismiss Riley s and Stevens sentencing claims based upon the waiver of appellate rights in the plea agreements, and decline to review Riley s and Stevens claims of ineffective assistance of counsel. oral argument adequately because presented in the the facts and materials We dispense with legal contentions are before this and Court argument would not aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART 7

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