US v. Terrance Carr, No. 15-4667 (4th Cir. 2016)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4667 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TERRANCE LAMAR CARR, a/k/a Lil Bud, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, Chief District Judge. (5:15-cr-00095-D-1) Submitted: August 9, 2016 Decided: November 8, 2016 Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Elisa Cyre Salmon, THE SALMON LAW FIRM, LLP, Lillington, North Carolina, 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 Unpublished opinions are not binding precedent in this circuit.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 Lamar Carr appeals his conviction and 204-month sentence imposed following his guilty plea to conspiracy to distribute and possess with intent to distribute 280 grams or more of cocaine base, in violation of 21 U.S.C. § 846 (2012), and possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A) (2012). On appeal, Carr’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. meritorious issues 738 for (1967), appeal but stating that questioning there are whether no Carr’s guilty plea was knowing and voluntary and whether the district court imposed an unreasonable sentence. supplemental brief challenging two Carr has filed a pro se Sentencing enhancements imposed by the district court. declined to file a response brief. Guidelines The Government has Following a thorough review of the record, we affirm. Before accepting a guilty plea, the trial court must conduct a colloquy in which it informs the defendant of, and determines that the defendant understands, the nature of the charges to which he is pleading guilty, any mandatory minimum penalty, the maximum penalties he faces, and the rights he is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). 2 The court also must ensure that the defendant’s plea voluntary and supported by an independent factual basis. is Fed. R. Crim. P. 11(b)(2), (3). Because Carr did not move to withdraw his guilty plea or otherwise preserve error in the plea proceedings, this Court reviews the adequacy of the plea colloquy for plain error. United States v. Massenburg, 564 F.3d 337, 342 (4th Cir. 2009). Carr establishes plain error by demonstrating that (1) the district court erred, (2) the error was plain, and (3) the error affected his substantial rights. 133 S. Ct. 1121, 1126 (2013). defendant establishes that an Henderson v. United States, In the guilty plea context, a error affected his substantial rights by demonstrating a reasonable probability that he would not have pled guilty but for the error. 343. Massenburg, 564 F.3d at Even if these requirements are met, we will exercise our discretion to “correct the error only if it seriously affects the fairness, proceedings.” integrity or public reputation of judicial United States v. Nicholson, 676 F.3d 376, 381 (4th Cir. 2012) (internal quotation marks omitted). The record reveals that the court substantially complied with the requirements of Rule 11, ensuring that Carr’s plea was knowing, basis. voluntary, and supported by an independent factual Although the district court made minor omissions during 3 the plea colloquy, see Fed. R. Crim. P. 11(b)(1)(A), (J), nothing in the record suggests that Carr would not have pled guilty but for these omissions. 343. See Massenburg, 564 F.3d at We therefore conclude that Carr’s guilty plea was knowing and voluntary. We review Carr’s sentence for reasonableness, applying “a deferential abuse-of-discretion standard.” States, 552 U.S. 38, 41 (2007). Gall v. United We must first “ensur[e] that the district court committed no significant procedural error,” including improper calculation of the Guidelines range, insufficient consideration of the 18 U.S.C. § 3553(a) (2012) factors, United or inadequate States v. explanation Lynn, 592 F.3d of the 572, 575 sentence (4th imposed. Cir. 2010) (internal quotation marks omitted). If we find no procedural error, we examine the substantive reasonableness circumstances.” of a sentence under Gall, 552 U.S. at 51. “the totality of the The sentence imposed must be “sufficient, but not greater than necessary” to satisfy the goals of sentencing. on appeal that a See 18 U.S.C. § 3553(a). within-Guidelines sentence is We presume substantively reasonable. United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). Carr bears the burden to rebut this presumption “by 4 showing that the sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” We conclude Carr’s Id. sentence was reasonable. Carr challenges Guidelines enhancements imposed by the district court under U.S. Sentencing Guidelines Manual § 2D1.1(b)(2) (2014) and USSG § 3C1.2. Section 3C1.2 provides for a two-level enhancement “[i]f the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.” USSG § 3C1.2; see United States v. Shell, 789 F.3d 335, 347 (4th Cir. 2015). “[A]cts are considered reckless when [the defendant] was aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation.” United States v. Carter, 601 F.3d 252, 255 (4th Cir. 2010) (internal quotation marks omitted). level enhancement credible violence.” threat Section 2D1.1(b)(2) also provides for a two“[i]f to use the defendant violence, or used violence, directed the made use a of USSG § 2D1.1(b)(2). Because Carr did not object to these enhancements in the district court, we review his unpreserved Guidelines challenges for plain error. United States v. Strieper, 666 F.3d 288, 292 5 (4th Cir. 2012); see Henderson, 133 S. Ct. at 1126-27 (describing standard); United States v. Revels, 455 F.3d 448, 451 n.2 (4th Cir. 2006) (explaining defendant’s obligation to object to presentence report); United States v. Love, 134 F.3d 595, 606 (4th Cir. 1998) (recognizing defendant’s obligation to affirmatively show inaccurate). Our review of the record and Carr’s supplemental brief leads us that to information conclude that in the presentence district report court did is not plainly err in imposing these enhancements. The district Guidelines provided court range, a properly considered well-reasoned calculated the Carr’s parties’ explanation for applicable arguments, the imposed, grounded in various § 3553(a) factors. sentence and it Further, Carr has not met his burden to rebut the presumption of substantive reasonableness accorded his within-Guidelines sentence. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. court We therefore affirm Carr’s criminal judgment. requires that counsel inform Carr, in writing, This of the right to petition the Supreme Court of the United States for further review. If Carr requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court 6 for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on Carr. 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 7

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