United States v. Jermal Lee ( 2013 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 12-4210
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    JERMAL LEE, a/k/a Jermal Ari Lee,
    Defendant - Appellant.
    No. 12-4237
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    KEVIN GOLDSMITH, a/k/a Kevin Lamont Goldsmith,
    Defendant - Appellant.
    Appeals from the United States District Court for the District
    of South Carolina, at Greenville. J. Michelle Childs, District
    Judge. (6:11-cr-00338-JMC-5; 6:11-cr-00338-JMC-9)
    Submitted:   December 18, 2012            Decided:   February 7, 2013
    Before WYNN, DIAZ, and THACKER, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Jill E.M. HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston,
    South Carolina; T. Kirk Truslow, TRUSLOW LAW FIRM, LLC, North
    Myrtle Beach, South Carolina, for Appellants.      Andrew Burke
    Moorman, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South
    Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
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    PER CURIAM:
    In these consolidated appeals, Jermal Lee and Kevin
    Goldsmith appeal their convictions and respective 180-month and
    204-month   sentences     following    guilty       pleas   to    conspiracy     to
    possess   with   intent   to   distribute      five   kilograms      or   more   of
    cocaine, 280 grams or more of cocaine base, and 1000 kilograms
    of marijuana, in violation of 
    21 U.S.C. § 841
    (a)(1), (b)(1)(A)
    (2006).     Appellate     counsel   filed      a   joint    brief   pursuant     to
    Anders v. California, 
    386 U.S. 738
     (1967), certifying that there
    are no meritorious issues for appeal, but questioning whether
    the district court fully complied with Fed. R. Crim. P. 11 in
    accepting     the   appellants’       guilty       pleas    and     whether      the
    appellants’ sentences are reasonable.
    In Lee’s pro se supplemental brief, he argues that:
    (1) his appellate waiver is void and should not be enforced;
    (2) his guilty plea is void because the trial court failed to
    inform him of the mandatory minimum sentence during the plea
    colloquy and failed to elicit an oral plea of guilty from him;
    (3) his sentence was erroneously enhanced pursuant to 
    21 U.S.C. § 851
     and the career offender enhancement provision; and (4) his
    trial counsel provided ineffective assistance by allowing him to
    plead guilty when he was actually innocent.                 In Goldsmith’s pro
    se supplemental brief, he asserts that: (1) his trial counsel
    was constitutionally ineffective for failing to inform him that
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    he    qualified    as    a   career      offender,     failing     to    perform     an
    adequate investigation into the facts of the case, and failing
    to    adequately    research       the    sentencing        options;    (2)   he    was
    erroneously sentenced as a career offender; and (3) his sentence
    was   erroneously       enhanced    pursuant     to    
    21 U.S.C. § 851
    .      The
    Government declined to file a responsive brief.                          Following a
    careful review of the record, we affirm.
    We first address the plea colloquies.                 Federal Rule of
    Criminal Procedure 11 requires a trial court, prior to accepting
    a guilty plea, to conduct a plea colloquy in which it informs
    the defendant of, and determines that the defendant comprehends,
    the nature of the charges to which he is pleading guilty, any
    mandatory    minimum      penalty,       the   maximum       possible    penalty    he
    faces, and the rights he is relinquishing by pleading guilty.
    United States v. DeFusco, 
    949 F.2d 114
    , 116 (4th Cir. 1991).
    Additionally,      the       district      court      must     ensure     that      the
    defendant’s plea was voluntary and did not result from force,
    threats, or promises not contained in the plea agreement.                          Fed.
    R. Crim. P. 11(b)(2).          “In reviewing the adequacy of compliance
    with Rule 11, this [c]ourt should accord deference to the trial
    court’s decision as to how best to conduct the mandated colloquy
    with the defendant.”         DeFusco, 
    949 F.2d at 116
    .
    Because Lee and Goldsmith did not move to withdraw
    their guilty pleas in the district court or raise any objections
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    to the Rule 11 colloquies, the colloquies are reviewed for plain
    error.       United States v. Martinez, 
    277 F.3d 517
    , 524-27 (4th
    Cir. 2002).          To demonstrate plain error, a defendant must show
    that: (1) there was an error; (2) the error was plain; and
    (3) the      error     affected      his   “substantial      rights.”          United
    States v. Olano, 
    507 U.S. 725
    , 732 (1993).                  To establish that a
    Rule 11 error has affected a defendant’s substantial rights, the
    defendant must “show a reasonable probability that, but for the
    error, he would not have entered the plea.”                      United States v.
    Dominguez Benitez, 
    542 U.S. 74
    , 83 (2004).
    Our review of the plea colloquy transcripts reveals
    that the district court failed to inform both appellants that
    they faced a mandatory minimum sentence of life imprisonment, as
    required by Fed. R. Crim. P. 11(b)(1), which constitutes plain
    error.      United States v. General, 
    278 F.3d 389
    , 394 (4th Cir.
    2002).      However, we conclude that the error does not affect the
    appellants’ substantial rights, as the record reveals that both
    appellants were aware that they faced a mandatory minimum term
    of life imprisonment prior to pleading guilty.                     The appellants
    stipulated in their respective plea agreements that they each
    had   two    prior     felony   drug     convictions,    subjecting     them    to   a
    mandatory      minimum       term   of   life     imprisonment   pursuant      to    
    21 U.S.C. § 851
    .      In    addition,     the    Government    reiterated      this
    information during the Rule 11 colloquies when reviewing the
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    plea agreements.              While Lee argues on appeal that the district
    court’s failure to inform him of the mandatory minimum sentence
    renders his guilty plea invalid, he does not assert that, but
    for this error, he would not have pled guilty.                                      Moreover, the
    record does not reflect that any lack of understanding of the
    mandatory    minimum           affected   Lee’s          or       Goldsmith’s        decision     to
    enter a guilty plea.                Notwithstanding the failure to inform the
    appellants     of       the    applicable      mandatory            minimum         sentence,    the
    court     otherwise           complied    with       Rule         11     at    both       hearings.
    Although the court did not specifically elicit an oral plea from
    the   appellants,         this      is   not    required            by   Rule       11,    and   the
    appellants confirmed their desire to plead guilty by signing a
    written plea during the Rule 11 hearing.                            The court ensured that
    Lee’s and Goldsmith’s guilty pleas were knowing and voluntary,
    that they understood the rights they were giving up by pleading
    guilty, and that they committed the offense to which they pled
    guilty.
    We next address the reasonableness of the sentences.
    We    review        a     sentence        for        procedural               and     substantive
    reasonableness,          applying        an    abuse          of       discretion         standard.
    Gall v. United States, 
    552 U.S. 38
    , 51 (2007).                                  In determining
    the     procedural        reasonableness            of        a    sentence,          this    court
    considers    whether          the    district       court         properly      calculated       the
    Guidelines range, treated the Guidelines as advisory, considered
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    the   §   3553    factors,        analyzed       any    arguments      presented           by    the
    parties, and sufficiently explained the selected sentence.                                      Id.
    at 51.      “Regardless of whether the district court imposes an
    above, below, or within-Guidelines sentence, it must place on
    the record an individualized assessment based on the particular
    facts of the case before it.”                United States v. Carter, 
    564 F.3d 325
    , 330 (4th Cir. 2009) (internal quotation marks omitted).
    We        assess      the    substantive           reasonableness          of        the
    sentence     by        “taking      into     account           the    totality         of       the
    circumstances, including the extent of any variance from the
    Guidelines range.”               United States v. Pauley, 
    511 F.3d 468
    , 473
    (4th Cir. 2007) (internal quotation marks and citation omitted).
    We    presume     that       a    below-Guidelines           sentence       is   reasonable.
    United States v. Susi, 
    674 F.3d 278
    , 289 (4th Cir. 2012).                                       That
    this court would have imposed a different sentence is not reason
    alone to vacate the district court’s sentence.                          United States v.
    Morace, 
    594 F.3d 340
    , 346 (4th Cir. 2010).
    We conclude that the district court committed neither
    procedural       nor    substantive        error       in    sentencing.             The    court
    accurately       stated       the   statutory          mandatory      sentence        of        life
    imprisonment          that       applied     to        Lee     and    Goldsmith            before
    consideration          of    the     Government’s            motion     for      a    downward
    departure,       verified         that     the       appellants       had     reviewed          and
    discussed       the    presentence         report       with    their       attorneys,           and
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    entertained     arguments          from   both       appellants          for    a    particular
    sentence.      In addition, the appellants’ sentences were properly
    enhanced     pursuant        to     
    21 U.S.C. § 851
    ,          contrary      to    their
    arguments      on    appeal,       as    they       each    had    at     least      two   prior
    qualifying felony drug convictions.                         Lee was likewise properly
    classified as a career offender.                           Although Goldsmith asserts
    that he was erroneously designated a career offender, our review
    of the record indicates that he was not, in fact, classified or
    sentenced as a career offender.                       Accordingly, his argument is
    without merit.
    In their pro se briefs, Lee and Goldsmith both assert
    that   their        trial     counsel      rendered          ineffective            assistance.
    Claims of ineffective assistance of counsel are generally not
    cognizable     on        direct    appeal,      unless       the       record   conclusively
    establishes counsel’s “objectively unreasonable performance” and
    resulting prejudice.              United States v. Benton, 
    523 F.3d 424
    , 435
    (4th Cir. 2008).             The record does not conclusively establish
    that   trial    counsel       rendered       ineffective           assistance        to    either
    appellant.           Lee    and     Goldsmith         must    therefore         bring      their
    allegations         of    ineffective      assistance             of    counsel      in    a   
    28 U.S.C.A. § 2255
     (West Supp. 2012) motion, should they wish to
    pursue such claims.               United States v. Baptiste, 
    596 F.3d 214
    ,
    216 n.1 (4th Cir. 2010).
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    In accordance with Anders, we have reviewed the entire
    record for meritorious issues and have found none.                     We therefore
    affirm the district court’s judgment.                 This court requires that
    counsel inform Lee and Goldsmith, in writing, of their right to
    petition   the   Supreme     Court   of       the   United    States   for   further
    review.    If Lee or Goldsmith requests that a petition be filed,
    but counsel believes that such a petition would be frivolous,
    counsel    may   move   in   this    court      for   leave    to   withdraw    from
    representation.     Counsel’s motion must state that a copy thereof
    was served on Lee and Goldsmith.               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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