United States v. Jeremy Barr , 539 F. App'x 229 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4297
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEREMY JEROD BARR,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:12-cr-00061-RBH-1)
Submitted: September 9, 2013 Decided: September 13, 2013
Before WILKINSON and THACKER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Alfred William Walker
Bethea, Jr., Assistant United States Attorney, Florence, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeremy Jerod Barr pled guilty, pursuant to a plea
agreement, to using and carrying a firearm during and in
relation to—and possessing a firearm in furtherance of—a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
(2006). The court sentenced Barr to the mandatory minimum
sentence of sixty months’ imprisonment. On appeal, counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), stating that there are no meritorious issues for appeal
but questioning whether the district court complied with Fed. R.
Crim. P. 11 in accepting Barr’s plea and whether Barr’s sentence
is reasonable. Barr was advised of his right to file a pro se
supplemental brief, but he did not do so. We affirm.
Because Barr 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 establish plain error on appeal, Barr 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 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).
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After reviewing the transcript of Barr’s guilty plea
hearing pursuant to Anders, we conclude that the district court
substantially complied with Rule 11 in accepting Barr’s guilty
plea and that any omission by the court did not affect Barr’s
substantial rights. See Fed. R. Crim. P. 11(b)(2) (mandating,
among other requirements, that court ascertain that plea did not
result from promises not contained in plea agreement);
Massenburg, 564 F.3d at 344 (“[T]he mere existence of an error
cannot satisfy the requirement that [defendant] show that his
substantial rights were affected.”); see also United States v.
Escamilla-Rojas, 640 F.3d 1055, 1062 (9th Cir. 2011) (holding
that there is no plain error when nothing in record suggests
“that [defendant’s] plea would have changed if the . . . [court]
had expressly” complied with Rule 11(b)(2)). Critically, the
district court ensured that the plea was supported by an
independent factual basis, that Barr entered the plea knowingly
and voluntarily, and that Barr understood the nature of the
charge to which he pled guilty, the maximum and mandatory
minimum penalties he faced, and the rights he relinquished by
pleading guilty. Fed. R. Crim. P. 11(b)(1); United States v.
DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
Although the transcript of the plea colloquy suggests
that counsel promised Barr he would receive the Guidelines
sentence of sixty months by pleading guilty, the court confirmed
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that Barr understood the court was not bound by the Guidelines’
recommendation. See United States v. Lambey, 974 F.2d 1389,
1395 (4th Cir. 1992) (“[I]f the information given by the court
at the Rule 11 hearing corrects or clarifies the earlier
erroneous information . . . [from] defendant’s attorney and the
defendant admits to understanding the court’s advice, the
criminal justice system must be able to rely on the subsequent
dialogue between the court and defendant.”). Moreover, Barr’s
plea agreement stated that any sentencing prediction by his
attorney did not constitute a promise. And, in any event, the
district court imposed the precise sentence counsel advised Barr
he would receive. Accordingly, we discern no plain error in the
district court’s acceptance of Barr’s guilty plea.
We review Barr’s sentence for reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). A sentence is procedurally
reasonable if the court properly calculates the defendant’s
advisory Guidelines range, gives the parties an opportunity to
argue for an appropriate sentence, considers the 18 U.S.C.
§ 3553(a) (2006) factors, does not rely on clearly erroneous
facts, and sufficiently explains the selected sentence. Id. at
49-51. After reviewing the sentencing transcript pursuant to
Anders, we conclude that Barr’s sentence is procedurally
reasonable. We also conclude that Barr’s mandatory minimum
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sentence is substantively reasonable. See United States v.
Farrior, 535 F.3d 210, 224 (4th Cir. 2008) (holding that “[a]
statutorily required [mandatory minimum] sentence . . . is per
se reasonable”).
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 Barr,
in writing, of the right to petition the Supreme Court of the
United States for further review. If Barr 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 Barr.
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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