United States v. Lewellyn Vaught , 503 F. App'x 217 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4148
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEWELLYN TERRELL VAUGHT, a/k/a Gee Bee,
Defendant - Appellant.
No. 12-4149
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DESMON TERRILL BARNHILL, a/k/a T.B., a/k/a Terry,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever, III,
Chief District Judge. (7:10-cr-00075-D-2; 7:10-cr-00075-D-1)
Submitted: December 21, 2012 Decided: January 7, 2013
Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
W. H. Paramore, III, THE LAW OFFICES OF W. H. PARAMORE, III,
Jacksonville, North Carolina; Mark R. Sigmon, GRAEBE HANNA &
WELBORN, PLLC, Raleigh, North Carolina, for Appellants.
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A federal grand jury returned a multi-count indictment
against Lewellyn Terrell Vaught and Desmon Terrill Barnhill.
Vaught pled guilty without a plea agreement to aiding and
abetting the distribution of cocaine, in violation of 18 U.S.C.
§ 2 (2006) and 21 U.S.C.A. § 841(a)(1) (West 2006 & Supp. 2012)
(count four), and distribution of cocaine, in violation of
21 U.S.C.A. § 841(a)(1) (count five). Barnhill pled guilty
without a plea agreement to two counts of distribution of
cocaine, in violation of 21 U.S.C.A. § 841(a)(1) (counts six and
eight). The Government later filed a one-count criminal
information charging Barnhill with conspiracy to possess with
intent to distribute and to distribute 500 grams or more of
cocaine, in violation of 21 U.S.C. § 846 (2006) and a two-count
criminal information charging Vaught with conspiracy to possess
with intent to distribute and to distribute 500 grams or more of
cocaine, in violation of 21 U.S.C. § 846 (count one), and
possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1), 924 (2006) (count two). Both defendants
pled guilty as charged in the informations, pursuant to written
plea agreements.
The district court calculated Vaught’s Guidelines
ranges on counts one, four, and five at 168 to 210 months’
imprisonment and Guidelines sentence on count two at 120 months’
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imprisonment and sentenced Vaught to three concurrent terms of
168 months’ imprisonment on counts one, four, and five and a
concurrent term of 120 months’ imprisonment on count two. The
district court calculated Barnhill’s Guidelines range on all
three counts to which he pled guilty at 168 to 210 months’
imprisonment and sentenced him to three concurrent terms of 180
months’ imprisonment.
On appeal, counsel have filed a joint brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal. Counsel for Vaught
questions, however, whether the district court erred in adopting
the presentence report’s calculation of the amount of cocaine
base for which Vaught was responsible. Counsel for Barnhill
questions whether Barnhill’s guilty pleas were knowingly and
voluntarily made, whether trial counsel rendered ineffective
assistance, and whether Barnhill’s sentence is procedurally and
substantively reasonable. The Government moves to dismiss the
appeals of defendants’ sentences based on their waivers of
appellate rights. Both defendants were informed of their rights
to file pro se supplemental briefs, and Vaught has filed a pro
se brief raising several challenges, including challenges to his
sentences. We dismiss in part and affirm in part.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Poindexter,
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492 F.3d 263, 270 (4th Cir. 2007). Generally, if the district
court fully questions a defendant regarding the waiver of his
right to appeal during the plea colloquy performed in accordance
with Fed. R. Crim. P. 11, the waiver is both valid and
enforceable. United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005). Whether a defendant validly waived his right
to appeal is a question of law this court reviews de
novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005).
Our review of the record leads us to conclude that
Vaught knowingly and voluntarily waived the right to appeal his
168-month sentence on count one and his 120-month sentence on
count two. We further conclude that Barnhill knowingly and
voluntarily waived his right to appeal his 180-month sentence
imposed with respect to the conspiracy count in the criminal
information. We therefore grant the Government’s motion to
dismiss in part and dismiss the appeals of those sentences.
Although Vaught’s and Barnhill’s appeal waivers
insulate those sentences from appellate review, the waivers do
not prohibit our review of the non-sentencing claims raised by
Barnhill’s counsel and Vaught, the sentencing claims raised by
counsel in the Anders brief and Vaught in his pro se
supplemental brief to the extent they pertain to the sentences
imposed on counts four, five, six, and eight of the indictment,
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and the remainder of record pursuant to Anders. Accordingly, we
deny the Government’s motion to dismiss the appeals in part.
Barnhill’s counsel questions whether the district
court reversibly erred in accepting his guilty pleas. * Because
Barnhill did not move in the district court to withdraw his
guilty pleas, the adequacy of the Fed. R. Crim. P. 11 hearings
is reviewed for plain error only. United States v. Martinez,
277 F.3d 517, 524-26 (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
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 Rule 11 omission. United States v.
Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).
Our review of the transcripts of the guilty plea
hearings leads us to conclude that the district court
substantially complied with the mandates of Rule 11 in accepting
Barnhill’s guilty pleas and that the court’s omissions did not
*
The Government moves to dismiss Barnhill’s challenge to
the acceptance of his guilty pleas. This constitutes, in
effect, a motion for summary affirmance of the unwaived claim.
This court reserves such a motion for extraordinary
circumstances not present here. 4th Cir. R. 27(f).
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affect Barnhill’s substantial rights. Critically, the
transcripts reveal that the district ensured the pleas were
supported by independent bases in fact and that Barnhill entered
the pleas knowingly and voluntarily with an understanding of the
consequences. United States v. DeFusco, 949 F.2d 114, 116, 120
(4th Cir. 1991). Accordingly, we discern no plain error in the
district court’s acceptance of Barnhill’s guilty pleas.
Next, Barnhill’s counsel and Vaught question whether
trial counsel rendered ineffective assistance prior to
sentencing. After review of the record, we find these claims
inappropriate for resolution on direct appeal. Because
ineffectiveness of counsel is not conclusively established by
the record, Barnhill and Vaught must assert such claims, if at
all, in a motion pursuant to 28 U.S.C.A. § 2255 (West Supp.
2012). United States v. King, 119 F.3d 290, 295 (4th Cir.
1997).
Turning to the district court’s imposition of sentence
on counts four, five, six, and eight, we review these sentences
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. Id. at 51. In determining procedural reasonableness,
we consider whether the district court properly calculated the
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defendant’s advisory Guidelines range, gave the parties an
opportunity to argue for an appropriate sentence, considered the
18 U.S.C. § 3553(a) (2006) 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. If the sentence is within the
properly calculated Guidelines range, we apply a presumption on
appeal that the sentence is substantively reasonable. United
States v. Mendoza-Mendoza, 597 F.3d 212, 217 (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).
After review of the record, we conclude that Vaught
and Barnhill both fail to establish any clear error in the
district court’s calculations of the drug quantities
attributable to them. See United States v. Kellam, 568 F.3d
125, 147 (4th Cir. 2009) (stating the standard of
review); United States v. Randall, 171 F.3d 195, 210-11
(4th Cir. 1999) (explaining that a defendant bears the burden of
establishing that information in the presentence report the
district court relied on in calculating the relevant drug
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quantity is incorrect); see also United States v. Powell,
650 F.3d 388, 392 (4th Cir.) (holding that a sentencing court
may consider relevant information before it, including
uncorroborated hearsay, “provided that the information has
sufficient indicia of reliability to support its accuracy”
(internal quotation marks omitted)), cert. denied, 132 S. Ct.
350 (2011).
The district court also otherwise correctly calculated
the defendants’ Guidelines ranges, heard argument from counsel,
gave Barnhill the opportunity to allocute, and heard allocution
from Vaught. The court also considered the § 3553(a) factors
with respect to each defendant and provided an adequate
explanation of its individualized assessment of those factors in
determining the defendants’ sentences. Defendants do not offer,
and our review pursuant to Anders does not reveal, any grounds
to rebut the presumption on appeal that their within-Guidelines
sentences are substantively reasonable. Accordingly, we
conclude that the district court did not abuse its discretion in
sentencing Vaught and Barnhill on those counts.
Finally, in accordance with Anders, we have reviewed
the remainder of the record and have found no meritorious issues
for review. Accordingly, we affirm the defendants’ convictions
on all counts and their sentences on counts four, five, six, and
eight, and dismiss the appeals of their sentences on counts one,
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two, and the conspiracy count in the information filed against
Barnhill. We also deny as moot Vaught’s motion to accelerate
case processing.
This court requires that counsel inform Vaught and
Barnhill, in writing, of their rights to petition the Supreme
Court of the United States for further review. If Vaught or
Barnhill 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
Vaught or Barnhill.
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.
DISMISSED IN PART;
AFFIRMED IN PART
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