United States v. McAllister ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5045
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRON MCALLISTER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
District Judge. (7:06-cr-00044-D-1)
Submitted: May 7, 2010 Decided: May 28, 2010
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville,
North Carolina, for Appellant. Anne Margaret Hayes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Terron
McAllister pled guilty to possession with intent to distribute
crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006), and
using and carrying a firearm during and in relation to a drug
trafficking offense, in violation of 18 U.S.C. § 924(c)(1)
(2006). The district court sentenced him to 180 months on the
drug charge and a mandatory consecutive 60-month term on the
firearm charge. Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that, in his view,
there are no meritorious issues for appeal, but raising the
issues of whether there was ineffective assistance of counsel or
prosecutorial misconduct warranting setting aside the judgment,
whether the district court properly calculated the advisory
guideline range, and whether the court erred in upwardly
departing from the advisory guideline range. Counsel also noted
additional issues concerning the adequacy of the court’s notice
that it was contemplating an upward departure, whether the court
erred by denying McAllister’s request to reopen the evidence at
sentencing, and whether the government violated the plea
agreement by arguing for a higher guideline range than that
agreed to in the plea agreement, and whether there was
sufficient evidence to support the district court’s findings at
sentencing. In a pro se supplemental brief, McAllister asserted
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that his criminal history was improperly computed, the district
court improperly enhanced his sentence based on a drug quantity
not admitted to by him, and that the evidence on which the court
made sentencing findings was not sufficiently reliable. Finding
no reversible error, we affirm.
In the plea agreement, the Government and McAllister
stipulated that he would be accountable for between three and
four grams of crack cocaine. At sentencing, the Government
presented witnesses who testified that McAllister directed
members of a violent gang to threaten and assault two witnesses
who had planned to testify against McAllister. Upon questioning
by the court, one witness explained that he had paid McAllister
4.5 ounces of cocaine every month for a year in exchange for
McAllister providing security for him. The district court
continued the sentencing hearing to allow the probation officer
to recompute the advisory guideline range taking this drug
quantity into account. The district court also provided oral
and written notice that it was considering an upward departure
from the resulting guideline range based on McAllister’s conduct
of obstructing justice and committing perjury.
McAllister thereafter moved the court to allow him to
present additional evidence in rebuttal. At the reconvened
sentencing hearing, the court accepted a proffer of evidence
from McAllister and, considering the proffer, determined that it
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did not alter the court’s findings that McAllister committed
perjury and obstructed justice. The court adopted the
sentencing computation in the revised presentence report, and
thereafter upwardly departed a total of four offense levels from
the redetermined advisory guideline range and sentenced
McAllister to 180 months on the drug charge and a mandatory
consecutive 60-month term on the firearm charge.
Initially, we note that, although not challenged by
McAllister, we find that his guilty plea is valid. The district
court fully complied with the mandates of Fed. R. Crim. P. 11 in
accepting his guilty plea and ensured that McAllister entered
his plea knowingly and voluntarily and that the plea was
supported by an independent factual basis. See United States v.
DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).
Accordingly, we affirm McAllister’s convictions.
Although counsel raises the possibility of ineffective
assistance of counsel, our review of the record discloses no
evidence of this. Accordingly, that issue is not properly
addressed on direct appeal. See United States v. Baldovinos,
434 F.3d 233, 239 (4th Cir. 2009) (holding that court will
“address [claims of ineffective assistance] on direct appeal
only if the lawyer’s ineffectiveness conclusively appears from
the record”).
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McAllister asserts that the Government may have
breached the plea agreement or engaged in prosecutorial
misconduct by arguing at sentencing for a greater drug quantity
than that stipulated in the plea agreement and by changing its
position on McAllister’s eligibility for the three-level
reduction for acceptance of responsibility. However, after the
district court made explicit findings that McAllister perjured
himself during the sentencing hearing and influenced members of
a gang in prison to threaten and assault two cooperating
witnesses, the Government asked the court to find that, in light
of his conduct, the Government was no longer bound by the agreed
position with respect to sentencing factors. The district court
made this finding and therefore, the Government’s change of
position was justified in light of the change of circumstances
wrought by McAllister’s conduct.
McAllister also questions the sufficiency of the
court’s notice pursuant to Fed. R. Crim. P. 32(h) that it was
considering upwardly departing. We find the notice was clearly
sufficient. The court notified the parties during the initial
sentencing hearing of the bases upon which it was considering
departing. The court also continued the sentencing hearing to
provide written notice and to allow McAllister the opportunity
to provide evidence on the departure issue. This was sufficient
notice. See Burns v. United States, 501 U.S. 129, 138 (1991).
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McAllister also questions whether the court erred in
refusing to reopen the evidentiary portion of the sentencing to
allow him to present rebuttal evidence. The court accepted
McAllister’s proffer of evidence and, even considering the
evidence proffered by McAllister, the court found that
McAllister did, in fact, obstruct justice by requesting the gang
members to assault and threaten cooperating witnesses.
McAllister cannot show that he was prejudiced by the court’s
refusal to allow additional witnesses to testify in support of
the proffer.
Next, McAllister contends that the guideline
sentencing range was improperly calculated. He asserts that the
base offense level should have been 20 based on the stipulated
drug quantity in the plea agreement. He also contends that he
should have received a three-level reduction for acceptance of
responsibility. However, after an evidentiary hearing at
sentencing, the court found that McAllister was accountable for
a significantly greater drug quantity and directed the probation
officer to prepare a new presentence report including the 4.5
ounces (127.58 grams) of cocaine per month that McAllister
received from Perez as payment for McAllister providing
security. The district court credited Perez’s testimony, which
supports this quantity, and therefore this finding is not
clearly erroneous.
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McAllister contends that the criminal history was
improperly computed, asserting that he should not have received
a criminal history point for his “driving while license
suspended/reckless driving to endanger” conviction for which he
received a forty-five day sentence. This offense was properly
attributed a criminal history point under USSG § 4A1.1(c). See
USSG § 4A1.2(c)(1), (2).
McAllister also contends that the district court erred
in enhancing his sentence based on facts not admitted to by him
in the plea agreement or the plea hearing. This argument lacks
merit. See United States v. Booker, 543 U.S. 220, 246 (2005);
United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005).
McAllister also challenges the district court’s
factual findings in support of the obstruction of justice
enhancements. We find no merit to this challenge. See United
States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009) (affording
great deference to district court’s credibility determinations)
(quoting United States v. Feurtado, 191 F.3d 420, 424 n.2 (4th
Cir. 1999)).
In the Anders brief, counsel also addresses the
reasonableness of the court’s upward departure from the advisory
guideline range established at sentencing due to the court’s
findings that McAllister obstructed justice and committed
perjury. We review for clear error a district court’s
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determination that a defendant obstructed justice. United
States v. Hughes, 401 F.3d 540, 560 (4th Cir. 2005). Here, the
district court found that McAllister committed perjury during
the sentencing hearing. This finding is sufficient to support
the obstruction of justice enhancement. USSG § 3C1.1, comment.
(n.4(b)). Also, an enhancement for obstruction of justice
“ordinarily indicates that a defendant has not accepted
responsibility for his criminal conduct,” except in
“extraordinary cases in which adjustments under both §§ 3C1.1
and 3E1.1 may apply.” USSG § 3E1.1, cmt. n.4. We find this is
not such an extraordinary case as would allow McAllister the
benefit of acceptance of responsibility in spite of his perjury
and other obstructive conduct. See United States v. Hudson, 272
F.3d 260, 263 (4th Cir. 2001).
We also uphold the district court’s upward adjustments
to McAllister’s offense level under USSG §§ 5K2.0(a)(1) and
5K2.2 based on the severity of his obstructive conduct and the
seriousness and extent of physical injury. Notably,
McAllister’s conduct resulted in five separate assaults--verbal
or physical--of two cooperating witnesses. Perez was left with
a visible scar over his eye following one attack, and McAllister
repeatedly perjured himself during the sentencing hearing.
These findings are sufficient to warrant an upward departure.
See United States v. Scheetz, 293 F.3d 175, 191 (4th Cir. 2002)
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(upholding departure under USSG § 5K2.1 and USSG § 5K2.2 because
defendant “help[ed] put into motion a chain of events that
risk[ed] serious injury or death” and because the defendant
“should have foreseen the possibility of serious physical harm
to another as a result of his actions”); United States v.
Ventura, 146 F.3d 91, 97-98 (2d Cir. 1998) (justifying departure
based on multiple, unrelated acts of obstruction); United
States v. Furkin, 119 F.3d 1276, 1283-85 (7th Cir. 1997)
(approving upward departure for multiple acts of obstruction,
including threatening witnesses).
Finally, we find that McAllister’s sentence was
reasonable. We review a sentence for reasonableness under an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007), considering both the procedural and substantive
reasonableness of a sentence. Id. We find that the district
court correctly determined McAllister’s guideline range,
appropriately considered the 18 U.S.C. § 3553(a) (2006) factors,
addressed the arguments presented by the parties, and
sufficiently explained the selected sentence. Gall, 552 U.S. at
49-50. Additionally, we find that the district court
appropriately provided an individualized explanation of the
reasons for the sentence and for the departures above the
advisory guidelines range. See United States v. Lynn, 592 F.3d
572, 576 (4th Cir. 2010) (“[A]n individualized explanation must
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accompany every sentence.”); United States v. Engle, 592 F.3d
495, 500 (4th Cir. 2010) (quoting Rita v. United States, 551
U.S. 338, 356 (2007)); United States v. Carter, 564 F.3d 325,
330 (4th Cir. 2009).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm McAllister’s convictions and his
sentences of 180 months on the drug charge and a 60-month
consecutive sentence on the firearms charge. See 18 U.S.C.
§ 924(c). This court requires that counsel inform McAllister,
in writing, of the right to petition the Supreme Court of the
United States for further review. If McAllister 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 McAllister. 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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