United States v. Charles Herbert , 702 F. App'x 170 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4626
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES VERNON HERBERT,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Loretta C. Biggs, District Judge. (1:15-cr-00341-LCB-2)
Submitted: May 31, 2017 Decided: August 15, 2017
Before KING, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Providence E. Napoleon, ALLEN & OVERY LLP, Washington, D.C., for Appellant.
Sandra J. Hairston, Acting United States Attorney, Terry M. Meinecke, Assistant United
States Attorney, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Vernon Herbert appeals his conviction and 70-month sentence for
conspiracy to distribute cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(b)(1)(C),
846 (2012). He argues: (1) a factual basis did not support his guilty plea; (2) his
sentence is procedurally and substantively unreasonable; and (3) the district court
violated his Sixth Amendment rights during sentencing. We affirm.
Because Herbert did not object to the adequacy of the factual basis or seek to
withdraw his guilty plea below, we review for plain error the sufficiency of the factual
basis. United States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014). A sentencing court
must ensure that a factual basis supports the guilty plea before entering judgment on the
plea. United States v. Mastrapa, 509 F.3d 652, 659 (4th Cir. 2007); Fed. R. Crim. P.
11(b)(3). For a defendant “[t]o be found guilty of conspiracy to distribute . . . cocaine,
the government must prove: (1) an agreement to possess . . . cocaine with intent to
distribute between two or more persons; (2) the defendant knew of the conspiracy; and
(3) the defendant knowingly and voluntarily became a part of the conspiracy.” United
States v. Allen, 716 F.3d 98, 103 (4th Cir. 2013).
Herbert contends that the factual basis was insufficient to support his guilty plea
because he admitted to conspiring only with Alfonzo Knight and not to any of the other
indicted individuals. The record reflects, and Herbert admits, that he knowingly and
volunteeringly agreed with Knight to distribute cocaine hydrochloride. This alone is
sufficient to convict Herbert for conspiracy to distribute cocaine hydrochloride. See
Allen, 716 F.3d at 103; United States v. Malave, 22 F.3d 145, 149 (7th Cir. 1994) (finding
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sufficient factual basis for guilty plea where defendant admitted basic conduct of
conspiracy but objected to number of coconspirators and conspiracies). Therefore, the
district court did not err in concluding that a sufficient factual basis supported Herbert’s
guilty plea.
Next, Herbert contends that his sentence is both procedurally and substantively
unreasonable because the district court considered two erroneous facts in applying an
upward variance: (1) Herbert was involved in drug distribution activities at a mobile
home park; and (2) Herbert enlisted Knight to engage in his criminal enterprise. Herbert
alleges that the district court also erred by failing to individually analyze his actions and
by formulating his sentence based on the sentences and collective conduct of his
codefendants.
We review a sentence for reasonableness “under a deferential abuse-of-discretion
standard.” United States v. McCoy, 804 F.3d 349, 351 (4th Cir. 2015) (quoting Gall v.
United States, 552 U.S. 38, 41 (2007)). We first consider whether the district court
committed a significant procedural error, such as improperly calculating the Sentencing
Guidelines range, failing to consider the 18 U.S.C. § 3553(a) (2012) sentencing factors,
choosing a sentence based on clearly erroneous facts, or failing to sufficiently explain the
sentence. Gall, 552 U.S. at 51. The district court is required to “make an individualized
assessment based on the facts presented.” Id. at 50. We review a district court’s “factual
findings [at sentencing] for clear error, its legal conclusions de novo, and unpreserved
arguments for plain error.” United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012).
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Our review of the record convinces us that the district court did not consider
clearly erroneous facts in sentencing Herbert. See Gall, 552 U.S. at 51. First, the court
did not weigh Herbert’s alleged involvement in drug distribution activities at the mobile
home park in determining the sentence, and instead stated that Herbert’s relevant conduct
was recruiting Knight to conduct drug transactions while Herbert was in prison. During
its discussion of the § 3553(a) factors, the court never mentioned Herbert’s alleged
involvement in the mobile home park operation, and it provided several other
justifications for the upward variance. For these reasons, we need not address whether
sufficient evidence tied Herbert to the mobile home park operation.
The district court also did not err in considering Herbert’s “enlistment” of Knight
to distribute drugs on his behalf. The district court conducted an individualized
assessment of Herbert’s § 3553(a) factors. It thoroughly reviewed the facts of the case
and focused its rationale for the upward variance on Herbert’s conduct and criminal
history. The court did not mention any aspects of the mobile home park operation in its
explanation of the variance. Thus, Herbert’s sentence is procedurally reasonable.
Herbert also challenges his sentence’s substantive reasonableness on the grounds
that the district court considered erroneous facts. Herbert does not contest the length of
the sentence or degree of the variance. Our substantive reasonableness analysis is based
on “the totality of the circumstances, including the extent of any variance from the
Guidelines range.” Gall, 552 U.S. at 51. We “must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”
Id. “If the district court relies on an improper factor, a sentence may be substantively
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unreasonable.” United States v. Aplicano-Oyuela, 792 F.3d 416, 425 (4th Cir. 2015). As
discussed above however, the district court did not consider improper factors in
sentencing Herbert, and its sentence is therefore substantively reasonable.
Finally, Herbert alleges that the district court violated his Sixth Amendment rights
by relying on facts outside of the record to impose an upward variance. He argues that by
improperly relying on his alleged involvement in the mobile home park operation and
enlistment of Knight, the court imposed a sentence greater than the maximum allowed by
the admitted facts.
Because Herbert raises this claim for the first time on appeal, we review it for
plain error. United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). The Sixth
Amendment’s jury-trial guarantee prohibits the district court from “impos[ing] a sentence
above the statutory maximum based on a fact, other than a prior conviction, not found by
a jury or admitted by the defendant.” Cunningham v. California, 549 U.S. 270, 274
(2007). Because Herbert was sentenced within the statutory maximum and pursuant to
the advisory Sentencing Guidelines, he is entitled to no relief on this claim.
Accordingly, we affirm the judgment of the district court. 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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