United States v. Devon Lunn , 707 F. App'x 176 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4138
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEVON LONA LUNN, a/k/a Devon Lunn Goodwin,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:16-cr-00019-WO-4)
Submitted: December 21, 2017 Decided: December 27, 2017
Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Sophia L. Harvey, LIAO HARVEY PC, Winston-Salem, North Carolina, for Appellant.
Graham Tod Green, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Winston-Salem, North Carolina; Angela Hewlett Miller,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Devon Lona Lunn appeals from the criminal judgment imposed after she pleaded
guilty to conspiracy to distribute cocaine base and possession of a firearm by a felon.
She received a sentence of 87 months, which was below the advisory Sentencing
Guidelines range. Counsel has filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), stating that there are no meritorious grounds for appeal but generally
questioning whether the guilty plea is valid. The Government declined to file a brief.
Lunn filed a pro se supplemental brief raising sentencing challenges. After careful
review, we affirm.
Prior to accepting a guilty plea, a court must conduct a plea colloquy in which it
informs the defendant of, and determines that the defendant understands, the nature of the
charge to which she is pleading guilty, the maximum possible penalty she faces, and the
various rights she is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1); United
States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). The district court also must ensure
that the defendant’s plea is voluntary, supported by a sufficient factual basis, and not the
result of force, threats, or promises not contained in the plea agreement. Fed. R. Crim. P.
11(b)(2)-(3); DeFusco, 949 F.2d at 119-20.
Because Lunn did not move to withdraw her guilty plea in the district court or
otherwise preserve any allegation of Rule 11 error, we review the plea colloquy for plain
error. United States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014). “To prevail on a claim
of plain error, [Lunn] must demonstrate not only that the district court plainly erred, but
also that this error affected [her] substantial rights.” Id. at 816. In the guilty plea context,
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a defendant establishes that an error affected her substantial rights if she demonstrates a
reasonable probability that she would not have pleaded guilty but for the error. Id. The
record reveals that the district court conducted a sufficient plea colloquy with Lunn.
Accordingly, we conclude that the district court did not plainly err in accepting Lunn’s
guilty plea.
Lunn’s pro se supplemental brief challenges her sentence, arguing that she should
only be attributed with the drug quantity in a March 2015 controlled buy, that she did not
qualify as a career offender, and that the term of imprisonment resulted in a sentencing
disparity. Lunn’s plea agreement contained an appeal waiver. The Government has not
moved to enforce the waiver, accordingly our review pursuant to Anders is not precluded.
See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).
We review the reasonableness of a sentence under 18 U.S.C. § 3553(a) (2012) for
abuse of discretion. United States v. Lymas, 781 F.3d 106, 111 (4th Cir. 2015) (citing
Gall v. United States, 552 U.S. 38, 41 (2007)). First, we consider whether the district
court committed a significant procedural error, such as improperly calculating the
Guidelines range, failing to consider the § 3553(a) sentencing factors, or failing to
explain sufficiently the chosen sentence. Id. at 111-12. If the sentence is procedurally
reasonable, we consider its substantive reasonableness, “tak[ing] into account the totality
of the circumstances.” Gall, 552 U.S. at 51. We presume that a sentence within or below
the Guidelines range is substantively reasonable. United States v. Louthian, 756 F.3d
295, 306 (4th Cir. 2014). “Such a presumption can only be rebutted by showing that the
sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” Id.3
We discern no error in the court’s rulings or its determination of the Guidelines
range. We also conclude that Lunn fails to rebut the presumption that her below-
Guidelines-range sentence is substantively reasonable when measured against the
§ 3553(a) factors. See Louthian, 756 F.3d at 306. The district court sentenced Lunn to
87 months’ imprisonment—64 months below the lowest end of the Guidelines range
before any departure or variance. The court noted Lunn’s individual circumstances and
the harsh effect that the career offender enhancement had on her Guidelines range. Lunn
does not point to any factors that overcome the presumption of reasonableness afforded
to her below-Guidelines-range sentence.
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious issues for appeal. We therefore affirm Lunn’s conviction and
sentence. This court requires that counsel inform Lunn, in writing, of the right to petition
the Supreme Court of the United States for further review. If Lunn 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 Lunn.
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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