United States v. Elerico Howard ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4424
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ELERICO DURAN HOWARD, a/k/a Rico, a/k/a Freedom, a/k/a
Duran,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:14-cr-00223-H-1)
Submitted: May 25, 2016 Decided: June 6, 2016
Before DUNCAN and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North
Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:
Elerico Duran Howard pled guilty, pursuant to a plea
agreement, to conspiracy to possess with intent to distribute
500 grams or more of cocaine and an unspecified quantity of
marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2012),
and possession of a firearm by a felon, in violation of 18
U.S.C. §§ 922(g)(1), 924 (2012). The district court sentenced
Howard to 144 months’ imprisonment, and he now appeals.
Appellate 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
sentence imposed was procedurally and substantively reasonable
and whether plea counsel was ineffective. Howard was notified
of his right to file a pro se brief but has elected not to do
so. We affirm.
We review the reasonableness of a sentence “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). This entails review of the
procedural and substantive reasonableness of the sentence. Id.
at 51. “Procedural errors include ‘failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence—including
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an explanation for any deviation from the Guidelines range.’”
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)
(quoting Gall, 552 U.S. at 51). Only if the sentence is free of
“significant procedural error” do we review the substantive
reasonableness of the sentence, accounting for “the totality of
the circumstances.” Gall, 552 U.S. at 51. Any sentence within
a properly calculated Guidelines range is presumptively
substantively reasonable; this presumption is rebutted only “by
demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Dowell, 771
F.3d 162, 176 (4th Cir. 2014).
Because Howard failed to object to the sentence imposed, it
is reviewed for plain error only. United States v.
Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 2015). “To satisfy
plain error review, the defendant must establish that: (1) there
is a sentencing error; (2) the error is plain; and (3) the error
affects his substantial rights.” Id. Even if a plain error
occurred, we will not cure the error unless it “seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” Id.
Our review of the record confirms that the sentence imposed
was both procedurally and substantively reasonable. The
district court properly calculated the Guidelines range, allowed
counsel an adequate opportunity to argue on Howard’s behalf, and
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afforded Howard his right of allocution. Although the district
court’s explanation for the sentence was brief, given the
straightforward and conceptually simple nature of the arguments
and the within-Guidelines sentence imposed, the court’s
explanation was sufficient. See United States v. Hernandez, 603
F.3d 267, 271-72 (4th Cir. 2010).
As to the substantive reasonableness of the sentence, the
record does not reveal any factors that would overcome the
presumption of reasonableness afforded to the within-Guidelines
sentence imposed. Although Howard argues that the district
court erred in attributing more than the equivalent of 1000
kilograms of marijuana to him, we conclude that Howard has
waived this argument by withdrawing it below. See United
States v. Robinson, 744 F.3d 293, 298-99 (4th Cir. 2014).
Finally, Howard’s claim of ineffective assistance of
counsel is only cognizable on direct appeal if it conclusively
appears on the record that counsel was ineffective. United
States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014). To
succeed on a claim of ineffective assistance of counsel, Howard
must show that: (1) “counsel’s representation fell below an
objective standard of reasonableness”; and (2) “the deficient
performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687-88 (1984). In the context of a guilty plea,
to satisfy the second prong a defendant must establish a
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reasonable probability that, but for counsel’s errors, he would
have “insisted on going to trial.” Hill v. Lockhart, 474 U.S.
52, 59 (1985). The record does not establish ineffective
assistance of counsel. Therefore, this claim is not cognizable
on direct appeal and should be raised, if at all, in a 28 U.S.C.
§ 2255 (2012) motion.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Howard’s convictions and sentence.
This court requires that counsel inform Howard, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Howard 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 Howard.
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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