United States v. Tony Everette ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4320
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY DEVONTE WHITE EVERETTE, a/k/a Tony Devonta Everette,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:18-cr-00234-WO-1)
Submitted: August 14, 2021 Decided: August 26, 2021
Before NIEMEYER and HARRIS, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Duberstein, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North
Carolina, for Appellant. Anand P. Ramaswamy, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony Devonte White Everette pled guilty to two counts of possession of a firearm
by a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), two counts of distribution of
cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), distribution of cocaine
hydrochloride, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and possession of a firearm
in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). The
district court sentenced Everette below the Sentencing Guidelines range to a sentence of
96 months’ imprisonment and Everette now appeals. Everette’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious
grounds for appeal, but questioning whether the sentence is reasonable. Everette has filed
a supplemental pro se brief arguing that the district court erred by accepting his guilty plea.
We affirm.
Because Everette neither raised an objection during the Fed. R. Crim. P. 11
proceeding nor moved to withdraw his guilty plea in the district court, we review the plea
colloquy only for plain error. United States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014).
To establish plain error, Everette “must show that: (1) an error occurred; (2) the error was
plain; and (3) the error affected his substantial rights.” United States v. Lockhart, 947 F.3d
187, 191 (4th Cir. 2020) (en banc). In the guilty plea context, a defendant can establish
that an error affected his substantial rights by showing a reasonable probability that he
would not have pled guilty but for the Rule 11 omission. Sanya, 774 F.3d at 816.
Prior to accepting a guilty plea, “a trial court, through colloquy with the defendant,
must ensure that the defendant understands the nature of the charges to which the plea is
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offered.” United States v. Williams, 811 F.3d 621, 622 (4th Cir. 2016); see Fed. R. Crim.
P. 11(b)(1)(G). Here, the district court failed to ensure that Everette understood that, with
respect to the § 922(g)(1) offenses, “the Government must prove both that [Everette] knew
he possessed a firearm and that he knew he belonged to the relevant category of persons
barred from possessing a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).
This error satisfies the first two prongs of the plain error test. See Greer v. United States,
141 S. Ct. 2090, 2096-97 (2021).
We have thoroughly reviewed the record and conclude that the district court did not
reversibly err in accepting Everette’s guilty plea because the error did not affect his
substantial rights. Everette fails to advance “a sufficient argument or representation on
appeal that he would have presented evidence at trial that he did not in fact know he was a
felon.” Id. at 2100. Accordingly, he has not “carried the burden of showing a ‘reasonable
probability’ that the outcome of the district court proceeding would have been different”
but for the district court’s error. Id.; see also Sanya, 774 F.3d at 816.
Turning to Everette’s sentence, we review a sentence for reasonableness, applying
“a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007).
This review entails consideration of both the procedural and substantive reasonableness of
the sentence. Id. at 51. In determining procedural reasonableness, we consider whether
the district court properly calculated the defendant’s Sentencing Guidelines range, gave the
parties an opportunity to argue for an appropriate sentence, considered the 18 U.S.C.
§ 3553(a) factors, and sufficiently explained the selected sentence. Id. at 49-51. If there
are no procedural errors, we then consider the substantive reasonableness of the sentence,
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evaluating “the totality of the circumstances.” Id. at 51. A sentence is presumptively
substantively reasonable if it “is within or below a properly calculated Guidelines range,”
and this “presumption can only be rebutted by showing that the sentence is unreasonable
when measured against the 18 U.S.C. § 3553(a) factors.” United States v. Louthian, 756
F.3d 295, 306 (4th Cir. 2014).
We have reviewed the record and conclude that the district court did not commit
procedural error, and Everette fails to rebut the presumption that his sentence is
substantively reasonable. The district court properly calculated his Guidelines range and
reasonably determined that a sentence below Everette’s Guidelines range was appropriate
in this case.
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Everette, in writing, of the right to petition the
Supreme Court of the United States for further review. If Everette requests that a petition
be filed, but counsel 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 Everette.
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
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