United States v. Phillip Furr , 548 F. App'x 920 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4397
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILLIP SCOTT FURR,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, Chief District
Judge. (4:10-cr-01043-TLW-1)
Submitted: November 27, 2013 Decided: December 23, 2013
Before DAVIS, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ray Coit Yarborough, Jr., LAW OFFICE OF RAY COIT YARBOROUGH,
JR., Florence, South Carolina, for Appellant. Alfred William
Walker Bethea, Jr., Assistant United States Attorney, Florence,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phillip Scott Furr pled guilty to possession of
firearms by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(e) (2012), but preserved his right to appeal
the district court’s denial of his motion to suppress under
Franks v. Delaware, 438 U.S. 154 (1978). The district court
originally sentenced Furr to 250 months’ imprisonment. On
appeal, the Government sought remand of the case for
resentencing so that it could move for an additional one-level
downward adjustment for acceptance of responsibility pursuant to
the terms of the conditional plea agreement. See U.S.
Sentencing Guidelines Manual (“USSG”) § 3E1.1(b) (2012). We
granted the Government’s motion, vacated Furr’s sentence, and
remanded for resentencing. At the resentencing hearing, the
court granted the additional one-level downward adjustment for
acceptance of responsibility to Furr’s advisory Guidelines range
and sentenced Furr to 228 months’ imprisonment.
Furr now appeals the district court’s amended
judgment. 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
district court complied with Fed. R. Crim. P. 11 in accepting
Furr’s guilty plea and whether Furr’s sentence is reasonable.
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Furr has filed a pro se supplemental brief, in which he raises
several challenges to his sentence and the district court’s
denial of the motion to suppress. We affirm.
Initially, we conclude that some of the issues Furr
raises in his pro se supplemental brief are barred by the
mandate rule. See Volvo Trademark Holding Aktiebolaget v. Clark
Mach. Co., 510 F.3d 474, 481 (4th Cir. 2007) (providing that
“[t]he mandate rule is a specific application of the law of the
case doctrine” to cases that have been remanded on appeal).
Although Furr challenges the district court’s application of the
armed career criminal enhancement and argues that the Government
breached the plea agreement by seeking the enhancement, Furr has
waived appellate review of those issues by failing to raise them
in his first appeal. See United States v. Pileggi, 703 F.3d
675, 680 (4th Cir. 2013) (holding that party “is not permitted
to use the accident of a remand to raise an issue that it could
just as well have raised in the first appeal” (internal
quotation marks and alterations omitted)).
Next, Furr argues in his pro se supplemental brief, as
he did in his first appeal, that the district court erred by
denying his msotion to suppress. We review the factual findings
underlying the district court’s denial of a motion to suppress
for clear error and the court’s legal conclusions de novo.
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United States v. Kelly, 592 F.3d 586, 589 (4th Cir. 2010); see
United States v. Spears, 673 F.3d 598, 604-05 (7th Cir.)
(applying same standards to denial of motion following Franks
hearing), cert. denied, 133 S. Ct. 232 (2012). A defendant
bears a heavy burden in establishing the need for a Franks
hearing. United States v. Jeffus, 22 F.3d 554, 558 (4th Cir.
1994). A defendant must make a substantial preliminary showing
that a false statement critical to a finding of probable cause
made knowingly and intentionally, or with reckless disregard for
the truth, was included in the warrant affidavit. See Franks,
438 U.S. at 155-56; United States v. Clenney, 631 F.3d 658, 663
(4th Cir. 2011).
If the court conducts a hearing and finds that the
affiant committed perjury or manifested a reckless disregard for
the truth, the tainted material must be set aside. Franks, 438
U.S. at 156. If the remainder of the search warrant affidavit
is insufficient to support a probable cause finding, then “the
search warrant must be voided and the fruits of the search
excluded.” Id. The issue is not whether the challenged
information in the affidavit supporting the warrant is
ultimately found to be truthful, but whether “the information ..
. [was] believed or appropriately accepted by the affiant as
true.” Id. at 165.
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Upon our review of the transcript of the Franks
hearing, we conclude that the district court did not err in
finding that the officers did not provide false information to
the magistrate judge or manifest a reckless disregard for the
truth. The district court reasonably concluded that all three
of the officers involved in obtaining the search warrant
“believed or appropriately accepted” that the information
offered to support issuance of the warrant was true. Id.
Turning next to the validity of Furr’s guilty plea,
counsel questions whether the district court complied with Rule
11 in accepting Furr’s plea. Because Furr did not move in the
district court to withdraw his guilty plea, we review the Rule
11 hearing for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). To establish plain error on appeal,
Furr must show: “(1) there is ‘an error,’ (2) the error is
‘plain,’ and (3) the error ‘affect[s] substantial rights.’”
Henderson v. United States, 133 S. Ct. 1121, 1126 (2013)
(quoting United States v. Olano, 507 U.S. 725, 732 (1993)). In
the guilty plea context, a defendant meets his burden by showing
a reasonable probability that he would not have pled guilty but
for the Rule 11 omission. United States v. Massenburg, 564 F.3d
337, 343 (4th Cir. 2009).
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Upon our review of the transcript of Furr’s guilty
plea hearing, we conclude that the district court substantially
complied with Rule 11 in accepting Furr’s plea and that any
omission by the court did not affect Furr’s substantial rights.
See Fed. R. Crim. P. 11(b)(1)(E) (mandating that court explain
right against compelled self-incrimination); Massenburg, 564
F.3d at 344 (holding that “the mere existence of an error cannot
satisfy the requirement that [defendant] show that his
substantial rights were affected”); United States v. Stead, 746
F.2d 355, 356-57 (6th Cir. 1984) (concluding that failure to
advise defendant of right against compelled self-incrimination
did not require guilty plea to be set aside). Moreover, the
district court ensured that Furr’s plea was knowing and
voluntary and supported by a sufficient factual basis. See
United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir.
1991).
Next, both counsel and Furr question the
reasonableness of Furr’s sentence. We review Furr’s sentence
for reasonableness “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). A
sentence is procedurally reasonable if the court properly
calculates the defendant’s advisory Guidelines range, gives the
parties an opportunity to argue for an appropriate sentence,
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considers the 18 U.S.C. § 3553(a) factors, does not rely on
clearly erroneous facts, and sufficiently explains the selected
sentence. Id. at 49-51.
In his pro se supplemental brief, Furr argues that the
district court erred (1) by failing to order a revised
presentence report (“PSR”); (2) by failing to give him the
opportunity to object to the revised PSR; and (3) in the
procedure used at the resentencing hearing generally. We
conclude that the record directly contradicts Furr’s assertions:
the court specifically gave counsel an opportunity to suggest an
alternative procedure at the resentencing hearing. Neither
party accepted the court’s invitation or requested that the
probation officer prepare a revised PSR. Accordingly, we
conclude that Furr has waived any challenge related to the
procedure employed by the district court at the resentencing
hearing. See Olano, 507 U.S. at 733 (“[W]aiver is the
intentional relinquishment or abandonment of a known right.”
(internal quotation marks omitted)); United States v. Claridy,
601 F.3d 276, 284 n.2 (4th Cir. 2010) (“When a claim of . . .
error has been waived, it is not reviewable on appeal.”); see
also United States v. Taylor, 659 F.3d 339, 348 (4th Cir. 2011)
(“[T]he defendant is deemed bound by the acts of his lawyer-
agent.” (internal quotation marks omitted)).
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Finding no significant procedural error, we now
consider the substantive reasonableness of Furr’s sentence.
Gall, 552 U.S. at 51. In reviewing a sentence for substantive
reasonableness, we “examine[] the totality of the
circumstances,” and, if the sentence is within the properly
calculated Guidelines range, apply a presumption on appeal that
the sentence is substantively reasonable. United States v.
Mendoza-Mendoza, 597 F.3d 212, 216-17 (4th Cir. 2010). Such a
presumption is rebutted only if the defendant shows “that the
sentence is unreasonable when measured against the § 3553(a)
factors.” United States v. Montes-Pineda, 445 F.3d 375, 379
(4th Cir. 2006) (internal quotation marks omitted).
In his pro se supplemental brief, Furr argues that the
district court erred by distinguishing between the facts of his
case and the facts of Pepper v. United States, 131 S. Ct. 1229
(2011) (permitting district court to consider post-sentencing
rehabilitation as appropriate basis for variance under § 3553(a)
on resentencing), on the ground that Pepper demonstrated that he
had been making significant efforts at rehabilitation outside
prison, while Furr’s efforts were all within the prison
environment. We disagree with the suggestion that the district
court erred or abused its discretion in distinguishing Pepper.
It was not unreasonable for the court to conclude that Pepper’s
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significant progress outside of prison was more notable than
Furr’s efforts at rehabilitation while in prison and under the
threat of sanctions for noncompliance.
Notably, the district court did not ignore Furr’s
efforts at rehabilitation. Although the court explicitly
credited Furr for his efforts, the court also considered the
serious conduct of the underlying offense; Furr’s significant
prior record, which includes many violent felonies, some
involving particularly vulnerable victims; and Furr’s
demonstrated lack of respect for the law. See 18 U.S.C.
§ 3553(a)(1), (2)(A)-(D). Accordingly, we conclude that Furr
has not shown that his sentence is unreasonable when measured
against the § 3553(a) factors.
Finally, although Furr purports to challenge the
district court’s text order denying his post-sentence motion for
reconsideration, Furr did not effectively appeal that order.
See Smith v. Barry, 502 U.S. 244, 248–49 (1992) (holding that
appellate brief may serve as notice of appeal only if it
otherwise complies with rules governing proper timing and
substance).
In accordance with Anders, we have reviewed the record
and have found no meritorious grounds for appeal. We therefore
affirm the district court’s amended judgment. This court
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requires that counsel inform Furr, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Furr 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 Furr.
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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