US v. Anthony Pennington, No. 14-4232 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4232 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTHONY ALLEN PENNINGTON, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, District Judge. (3:13-cr-00037-GMG-JES-1) Submitted: September 30, 2014 Decided: October 7, 2014 Before GREGORY and DUNCAN, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Stephen D. Herndon, Wheeling, West Virginia, for Jarod James Douglas, Assistant United States Martinsburg, West Virginia, for Appellee. Appellant. Attorney, Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Anthony Allen Pennington appeals the 168-month sentence imposed by the district court following his guilty plea to traveling in interstate commerce with intent to engage in illicit (2012). sexual conduct, in violation of 18 U.S.C. § 2423(b) In accordance with Anders v. California, 386 U.S. 738 (1967), Pennington s counsel has filed a brief certifying that there are no meritorious grounds for appeal but questioning whether (1) Pennington s plea was knowing and voluntary, (2) the evidence considered at Pennington s sentencing was appropriately reliable, (3) Pennington received the effective assistance of counsel, and (4) the district court judge should have recused herself. se Although Pennington has not filed a supplemental pro brief, his notice of appeal identical to those counsel raises. listed errors materially We affirm. Because Pennington did not move to withdraw his plea, we review his Fed. R. Crim. P. 11 hearing for plain error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002); see United States v. Olano, 507 U.S. 725, 732 (1993) (discussing standard). When accepting the plea, the district court substantially complied with Rule 11, neglecting only to inform Pennington that it was not bound recommendations in the plea agreement. 11(c)(3)(B). by the sentencing See Fed. R. Crim. P. This minor omission did not affect Pennington s 2 substantial rights, and the district court ensured that the plea was knowing and voluntary. Although Pennington claims now that his plea was motivated by his desire to assist one of his former victims and that he never had the opportunity to review all of the evidence against him, these claims are belied Pennington s sworn statements during the Rule 11 hearing. Blackledge Allison, Gen., Attorney v. 956 Accordingly, we find 431 F.2d no U.S. 63, 1290, error, acceptance of Pennington s plea. 74 (1977); 1299 plain (4th or Fields Cir. otherwise, by See v. 1992). in the United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc). Turning to Pennington s challenges to his sentence, we review the sentence for discretion standard. (2007). We error[s], must using an abuse-of- Gall v. United States, 552 U.S. 38, 51 first including reasonableness, review improperly for significant calculating[] the procedural Guidelines range, . . . failing to consider the [18 U.S.C.] § 3553(a) [(2012)] factors, . . . or failing to adequately explain the chosen sentence. Gall, 552 U.S. at 51. Only if we find a sentence procedurally reasonable may we consider its substantive reasonableness. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). Here, Pennington s the district Guidelines court range, 3 and correctly there is no calculated merit in Pennington s suggestion that he was sentenced based on unreliable or otherwise incompetent evidence, especially since he raised no such objection at sentencing. See United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). Because the district court also adequately explained Pennington s within-Guidelines sentence, we conclude that substantively reasonable. the sentence is procedurally and United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (explaining that within-Guidelines sentence is presumed substantively reasonable). Next, Pennington claims that the district court judge should have recused herself because she presided as a state court judge over Pennington s prior criminal proceedings. Only in the rarest circumstance will a judge s prior familiarity with a party based on previous judicial proceedings warrant recusal. See United 1989); States see (1994). also Mitchell, Liteky v. 886 United F.2d 667, 671 (4th States, 510 U.S. 540, Cir. 555 No such circumstances are present here. Finally, Pennington s counsel. v. we several decline claims to of consider ineffective at this assistance time of Unless clearly apparent on the face of the record, such claims are not cognizable on direct appeal. See United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). In accordance with Anders, we have reviewed the entire record and have found no meritorious grounds for appeal. 4 We therefore requires affirm that the district counsel inform court s judgment. Pennington, in This writing, court of his right to petition the Supreme Court of the United States for further filed, review. but If counsel Pennington believes requests that such that a a petition petition would be be frivolous, counsel may move in this court for leave to withdraw from representation. thereof was served Counsel s motion must state that a copy on Pennington. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 5
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