United States v. Claude Verbal, II ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4788
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLAUDE ARTHUR VERBAL, II,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:14-cr-00114-CCE-1; 1:13-cr-00121-CCE-1)
Submitted: April 13, 2015 Decided: April 22, 2015
Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Robert L. McClellan, IVEY, MCCLELLAN, GATTON & TALCOTT, L.L.P.,
Greensboro, North Carolina, for Appellant. Frank Phillip
Cihlar, Gregory Victor Davis, Joseph Brian Syverson, Tax
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Claude Arthur Verbal, II, pled guilty to conspiracy to
defraud the United States, in violation of 18 U.S.C. § 371
(2012), aiding and assisting in the preparation of a false tax
return, in violation of 26 U.S.C. § 7206(2) (2012), health care
fraud, in violation of 18 U.S.C. §§ 2, 1347(a)(2) (2012), and
money laundering, in violation of 18 U.S.C. §§ 2, 1957(a)
(2012). The district court calculated Verbal’s Guidelines range
at 108 to 135 months’ imprisonment, U.S. Sentencing Guidelines
Manual (2013), and sentenced Verbal to 135 months’ imprisonment.
On appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal, but raising as issues for review
whether the district court reversibly erred in accepting
Verbal’s guilty plea and abused its discretion in imposing
sentence. Verbal was informed of his right to file a pro se
supplemental brief, but he has not done so. The Government did
not file a brief. We affirm.
Because Verbal did not move in the district court to
withdraw his guilty plea, the adequacy of the Fed. R. Crim. P.
11 hearing is reviewed for plain error only. United States v.
Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002). To demonstrate
plain error, a defendant must show: (1) there was error; (2) the
error was plain; and (3) the error affected his substantial
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rights. United States v. Olano, 507 U.S. 725, 732 (1993). In
the guilty plea context, a defendant meets his burden to
establish that a plain error affected his substantial rights by
showing a reasonable probability that he would not have pled
guilty but for the district court’s Rule 11 omissions.
United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).
Our review of the transcript of the guilty plea hearing
leads us to conclude that the district court substantially
complied with the mandates of Rule 11 in accepting Verbal’s
guilty plea. Critically, the transcript reveals that the
district court ensured that the plea was supported by an
independent basis in fact and that Verbal entered the plea
knowingly and voluntarily with an understanding of the
consequences. United States v. DeFusco, 949 F.2d 114, 116, 120
(4th Cir. 1991). Any omissions by the district court did not
affect Verbal's substantial rights. See Massenburg, 564 F.3d at
343. Accordingly, Verbal has not met his burden under plain-
error review to show that the district court’s acceptance of
his guilty plea warrants reversal.
Turning to Verbal’s sentence, we review it for
reasonableness “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41, 51 (2007).
This review entails appellate consideration of both the
procedural and substantive reasonableness of the sentence.
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Id. at 51. In determining procedural reasonableness, we
consider whether the district court properly calculated the
defendant’s advisory Guidelines range, gave the parties an
opportunity to argue for an appropriate sentence, considered the
18 U.S.C. § 3553(a) (2012) factors, selected a sentence based on
clearly erroneous facts, and sufficiently explained the selected
sentence. Id. at 49–51.
If the sentence is free of “significant procedural error,”
we review it for substantive reasonableness, “tak[ing] into
account the totality of the circumstances.” Id. at 51. Any
sentence within a properly calculated Guidelines range is
presumptively substantively reasonable. United States v.
Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421 (2014). Such a presumption can only be rebutted by a
showing that the sentence is unreasonable when measured against
the § 3553(a) factors. Id.
In this case, the district court correctly calculated and
considered the advisory Guidelines range, heard argument from
counsel, and heard allocution from Verbal. The court explained
that the 135-month sentence was warranted in light of the nature
and circumstances of Verbal’s offense conduct, his history and
characteristics, and the need for the sentence to deter criminal
conduct. 18 U.S.C. § 3553(a)(1), (2)(B). Verbal does not offer
any grounds to rebut the presumption on appeal that his
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within-Guidelines sentence is substantively reasonable.
Accordingly, we conclude that the district court did not abuse
its discretion in sentencing Verbal.
Finally, in accordance with Anders, we have reviewed the
remainder of the record in this case and have found no
meritorious issues for appeal. We therefore affirm the district
court’s judgment. This court requires that counsel inform
Verbal, in writing, of the right to petition the Supreme Court
of the United States for further review. If Verbal 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 Verbal.
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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