United States v. Dennis Bowers, Jr. ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4017
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DENNIS DARNELL BOWERS, JR.,
Defendant - Appellant.
No. 13-4106
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DENNIS DARNELL BOWERS, JR., a/k/a Diggs, a/k/a D.I.,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:11-cr-00297-WO-1; 1:12-cr-00257-
WO-1)
Submitted: September 10, 2013 Decided: October 3, 2013
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Robert A.
J. Lang, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Dennis Darnell Bowers,
Jr. appeals the district court’s judgments revoking his
supervised release and imposing consecutive prison sentences
after he admitted violating the conditions of his supervised
release and pled guilty to being a felon in possession of a
firearm. On appeal, Bowers contends that the district court
abused its discretion in sentencing him by relying on an
erroneous fact in the presentence report, and his trial attorney
was ineffective in failing to correct the error. We affirm.
“A federal court of appeals normally will not correct
a legal error made in criminal trial court proceedings unless
the defendant first brought the error to the trial court’s
attention.” Henderson v. United States, 133 S. Ct. 1121, 1124
(2013) (citing United States v. Olano, 507 U.S. 725, 731
(1993)). Federal Rule of Criminal Procedure 52(b) creates an
exception to the normal rule, providing “[a] plain error that
affects substantial rights may be considered even though it was
not brought to the court’s attention.” Fed. R. Crim. P. 52(b).
Because Bowers did not object to the presentence
report error in the district court, we review the first issue
for plain error. See United States v. Carthorne, __ F.3d __,
2013 WL 4056052, at *3 (4th Cir. Aug. 8, 2013). To establish
plain error, Bowers must show: (1) that an error was made; (2)
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that the error was plain; and (3) that the error affected his
substantial rights. See id. (citing Henderson, 133 S. Ct. at
1126; Olano, 507 U.S. at 732-35). If he makes this showing, the
decision to correct the error remains within our discretion, and
we will exercise that discretion only if the error would result
in a miscarriage of justice or would otherwise seriously affect
the fairness, integrity, or public reputation of judicial
proceedings. Id. (citations and quotation marks omitted).
“An error affected a defendant’s substantial rights if
the error affected the outcome of the district court
proceedings.” United States v. Knight, 606 F.3d 171, 178 (4th
Cir. 2010) (citations and internal quotation marks omitted).
“To satisfy this requirement in the sentencing context, the
defendant must show that he would have received a lower sentence
had the error not occurred.” Id. (citations omitted). This
“means that there must be a nonspeculative basis in the record
to conclude that the district court would have imposed a lower
sentence but for the error.” Id. at 179-80.
We have reviewed the record and the parties’ briefs,
and we conclude that Bowers has not made the requisite showing.
He has not shown any nonspeculative basis in the record to
conclude that the district court would have imposed a lower
sentence but for the presentence report error. We further
conclude that Bowers may not raise his second issue on direct
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appeal, because the record does not conclusively show his trial
counsel was ineffective. See United States v. Powell, 680 F.3d
350, 359 (4th Cir.), cert. denied, 133 S. Ct. 376 (2012).
We therefore affirm the district court’s judgments.
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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