United States v. Roy Locklear , 575 F. App'x 125 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4718
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROY LEE LOCKLEAR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:13-cr-00032-FL-2)
Submitted: May 30, 2014 Decided: June 4, 2014
Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph A. DiRuzzo, III, FUERST ITTLEMAN DAVID & JOSEPH, PL,
Miami, Florida, for Appellant. Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roy Lee Locklear pleaded guilty pursuant to a written
plea agreement to conspiracy to distribute and possess with
intent to distribute 280 grams or more of cocaine base, in
violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (2012), and was
sentenced to 262 months’ imprisonment. On appeal, counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), certifying that there are no meritorious issues for
appeal, but questioning the district court’s compliance with
Federal Rule of Criminal Procedure 11 and the reasonableness of
the sentence. In his pro se brief, Locklear argues that: his
guilty plea was not knowing and voluntary; his sentence is
procedurally unreasonable because the district court erred in
failing to grant a downward adjustment for his minor role in the
conspiracy and for his mental state, and improperly applied a
firearm enhancement; and his sentence is substantively
unreasonable. ∗ The Government declined to file a brief. We
affirm.
∗
We have not considered the validity of Locklear’s appeal
waiver because the Government does not assert it. Further,
Locklear’s claim that his plea counsel rendered ineffective
assistance is more appropriately raised in a 28 U.S.C. § 2255
(2012) motion, in order to allow adequate development of the
record. See United States v. Baptiste, 596 F.3d 214, 216 n.1
(4th Cir. 2010).
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Because Locklear 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 prevail under this standard, Locklear must
establish that an error occurred, was plain, and affected his
substantial rights. Henderson v. United States, 133 S. Ct.
1121, 1126 (2013); United States v. Massenburg, 564 F.3d 337,
342-43 (4th Cir. 2009). Our review of the record establishes
that the district court substantially complied with Rule 11’s
requirements, ensuring that Locklear’s plea was knowing and
voluntary.
We review Locklear’s sentence for reasonableness,
“under a deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51; United States v.
Lynn, 592 F.3d 572, 575 (4th Cir. 2010). After determining
whether the district court correctly calculated the advisory
Guidelines range, we must decide whether the court considered
the 18 U.S.C. § 3553(a) (2012) factors, analyzed the arguments
presented by the parties, and sufficiently explained the
selected sentence. Lynn, 592 F.3d at 575-76; United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009).
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Once we have determined that the sentence is free of
procedural error, we consider its substantive reasonableness,
“tak[ing] into account the totality of the circumstances.”
Gall, 552 U.S. at 51. If, as here, the sentence is within the
appropriate Guidelines range, we presume that the sentence is
substantively reasonable. United States v. Abu Ali, 528 F.3d
210, 261 (4th Cir. 2008). Such a presumption is rebutted only
if the defendant demonstrates “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).
We have carefully considered the sentencing challenges
raised by counsel and by Locklear in his pro se supplemental
brief. We conclude that the district court correctly calculated
Locklear’s advisory Guidelines range, heard argument from
counsel, and provided Locklear an opportunity to allocute. The
court explained that the within-Guidelines sentence of 262
months’ imprisonment was warranted in light of the nature and
circumstances of the drug conspiracy, Locklear’s history and
characteristics, and the need to promote respect for the law, to
afford adequate deterrence, and to protect the public. Neither
counsel nor Locklear offers any grounds to rebut the presumption
on appeal that the within-Guidelines sentence is substantively
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reasonable. Accordingly, we conclude that the district court
did not abuse its discretion in sentencing Locklear.
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
Locklear, in writing, of the right to petition the Supreme Court
of the United States for further review. If Locklear 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 Locklear. 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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