United States v. Kearney , 199 F. App'x 291 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4271
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS TRAY SHARMONE KEARNEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W. Boyle,
District Judge. (CR-04-15)
Submitted: August 4, 2006 Decided: September 12, 2006
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Walter H. Paramore, III, WALTER H. PARAMORE, III, P.C.,
Jacksonville, North Carolina, for Appellant. Frank DeArmon
Whitney, United States Attorney, Anne Margaret Hayes, Assistant
United Sates Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Thomas Tray Sharmone Kearney entered a guilty plea to
robbery of a postal carrier and aiding and abetting, in violation
of 18 U.S.C. §§ 2 and 2114(a) (2000) (Count One), and use of a
firearm during a crime of violence, in violation of 18 U.S.C.
§ 924(c) (2000) (Count Two). He received a sentence of 120 months’
imprisonment on Count One and 84 months on Count Two to run
consecutively.
Kearney’s counsel has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), stating that he has
concluded there are no meritorious issues for appeal, but
questioning whether the district court erred in sentencing Kearney
to a seven year mandatory minimum sentence under § 924(c) on Count
Two for brandishing a weapon when he was advised of a five-year
mandatory minimum sentence at the plea hearing and was not advised
of the potential two-year increase for brandishing a weapon, and
whether the sentence was imposed consistent with United States v.
Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005), and was reasonable.
Kearney filed a pro se supplemental brief, arguing that his plea
was involuntary, the district court failed to comply with the
requirements of Fed. R. Crim. P. 11 in the guilty plea hearing, and
that his counsel was ineffective. Finding no reversible error, we
affirm.
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Because Kearney did not move in the district court to
withdraw his guilty plea on the basis of Rule 11 errors, his
challenge to the adequacy of the Rule 11 hearing is reviewed for
plain error. See United States v. Martinez, 277 F.3d 517, 525 (4th
Cir. 2002). To meet the plain error standard: (1) there must be
an error; (2) the error must be plain; and (3) the error must
affect substantial rights. Id. If the three elements of the plain
error standard are met, the court may exercise its discretion to
notice error only if the error seriously affects “the fairness,
integrity, or public reputation of judicial proceedings.” United
States v. Olano, 507 U.S. 725, 732-37 (1993)(citation omitted).
At the plea hearing, the district court informed Kearney
that the statutory mandatory minimum for the firearm offense was
five years to a maximum of life imprisonment. Kearney was not
advised until the presentence report was prepared that he actually
faced a mandatory minimum sentence of seven years’ imprisonment on
Count Two because he “brandished” the weapon. We find that the
district court erred in misstating the mandatory minimum sentence
and that the error was plain.* See Fed. R. Crim. P. 11(b)(1)(I)
(requiring district court to inform defendant in open court about
*
The district court also stated that the maximum term of
imprisonment on Count One was twenty-five years under § 2114(a).
However, the probation officer determined the maximum term to be
ten years’ imprisonment. Because Kearney was sentenced to a lesser
term than the twenty-five-year maximum erroneously stated by the
district court, we find his substantial rights were not affected.
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the applicable mandatory minimum sentences). Kearney bears the
burden of demonstrating a reasonable probability that, but for the
error, he would not have pled guilty. United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004). Kearney does not allege that he
would not have pled guilty absent the court’s error. Moreover,
even after learning of the court’s error following preparation of
the presentence report, Kearney did not move to withdraw his guilty
plea based on the error. The record does not otherwise suggest
that the error likely affected Kearney’s decision to plead guilty
in this case. Kearney was advised that the sentencing range was
between five years and life, and he received seven years, far less
than he knew was possible. Finally, there is no genuine dispute
over whether Kearney in fact brandished the gun. At no point below
or on appeal has Kearney alleged that he did not, and the factual
basis proffered by the Government for the plea made clear that the
brandishment was crucial to the execution of the crime in this
case.
Next, Kearney’s counsel questions whether Kearney’s
sentence under the advisory guidelines was imposed consistent with
Hughes and was reasonable. Kearney’s sentence, which was imposed
within the advisory guideline range and within the statutory
mandatory minimums and maximums, was presumptively reasonable. See
United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006), cert.
denied, 126 S. Ct. 2309 (U.S. May 22, 2006) (No. 05-10474). A
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defendant can only rebut this presumption by showing the sentence
is unreasonable when measured against the § 3553(a) factors.
United States v. Montes-Pineda, 445 F.3d 375 (4th Cir. 2006). A
sentence may be procedurally unreasonable when the district court
provides an inadequate statement of reasons. United States v.
Moreland, 437 F.3d 424, 434 (4th Cir. 2006), cert. denied, 126 S.
Ct. 2054 (U.S. May 15, 2006) (No. 05-10393). However, a court need
not “robotically tick through § 3553(a)’s every subsection” or
“explicitly discuss every § 3553(a) factor on the record.” United
States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).
A “specific reference [at sentencing] to § 3553(a) factors
[is] certainly not required.” Johnson, 445 F.3d at 345. This
court has further held that “[t]he district court need not discuss
each factor set forth in § 3553(a) ‘in checklist fashion’; ‘it is
enough to calculate the range accurately and explain why (if the
sentence lies outside it) this defendant deserves more or less.’”
Moreland, 437 F.3d at 432 (quoting United States v. Dean, 414 F.3d
725, 729 (7th Cir. 2005)). Here, the district court asked
Kearney’s counsel to discuss mitigating factors. Counsel argued
that Kearney’s extensive cooperation following his arrest was a
mitigation factor. The district court repeatedly referred to the
guidelines as advisory and to the Hughes case. In imposing
sentence, the district court noted that the advisory guideline
range on Count One was calculated to be 140 to 175 months’
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imprisonment, but that the sentence was capped at 120 months based
on the statutory maximum. The court further noted it had
discretion to impose a sentence that was lower than 120 months. As
to Count Two, the court stated that it was bound by the mandatory
minimum 84-month sentence, although the sentence could be up to
life. Because the 120-month sentence on Count Two was within the
sentence provided by the criminal statutes for robbery and the 84-
month consecutive sentence on Count Two was within the statutory
sentence for brandishing a weapon during a crime of violence, we
find that Kearney’s sentence was reasonable.
Kearney argues in his pro se supplemental brief that his
counsel was ineffective. Because the record does not conclusively
establish ineffective assistance of counsel, we find these claims
are not cognizable on direct appeal. See United States v. DeFusco,
949 F.2d 114, 120-21 (4th Cir. 1991) (holding that claims of
ineffective assistance of counsel must be brought in a collateral
proceeding under 28 U.S.C. § 2255 (2000), unless it conclusively
appears from the face of the record that his counsel was
ineffective).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Kearney’s conviction and sentence. We
also grant Kearney’s motion for limited dismissal of his
supplemental brief and deny Kearney’s counsel’s motion to withdraw
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as counsel. This court requires that counsel inform Kearney, in
writing, of the right to petition the Supreme Court of the United
States for further review. If Kearney 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 Kearney. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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