United States v. Underhill ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4036
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JULIUS ERVIN UNDERHILL, a/k/a Devin Michael Hightower, a/k/a
E,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:08-cr-00056-TLW-1)
Submitted: July 26, 2010 Decided: August 23, 2010
Before WILKINSON, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James T. McBratney, Jr., MCBRATNEY LAW FIRM, P.A., 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Unpublished opinions are not binding precedent in this circuit.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:
Julius Ervin Underhill appeals his sentence to 262
months in prison and five years of supervised release after
pleading guilty to using and carrying a firearm during and in
relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A) (2006). Underhill’s attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting, in his opinion, there are no meritorious grounds for
appeal but raising the issues of whether the district court
complied with Fed. R. Crim. P. 11 when accepting Underhill’s
guilty plea, and whether his sentence is reasonable. Underhill
has filed a pro se supplemental brief raising the issues of
whether his counsel was ineffective for failing to argue for a
sentence reduction under Kimbrough v. United States, 552 U.S. 85
(2007), and whether the district court abused its discretion by
applying the crack cocaine guideline as mandatory. We affirm.
Appellate counsel first questions whether the district
court complied with Fed. R. Crim. P. 11 in accepting Underhill’s
guilty plea, but he concludes that the district court fully
complied with the rule. Because Underhill did not move in the
district court to withdraw his guilty plea, we review this
challenge for plain error. See United States v. Martinez, 277
F.3d 517, 525 (4th Cir. 2002). Thus, it is Underhill’s burden
to show (1) error; (2) that is plain; (3) affecting his
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substantial rights; and (4) we should exercise our discretion to
notice the error. Id. at 529. To show his substantial rights
were affected, Underhill must demonstrate that absent the error,
he would not have entered his guilty plea. Id. at 532. We may
consider the entire record to determine the effect of any error.
See United States v. Vonn, 535 U.S. 55, 74-75. We have reviewed
the record and conclude that Underhill has failed to show any
plain error affecting his substantial rights.
Appellate counsel next questions whether Underhill’s
sentence is reasonable, but he concludes that the sentence is
within a properly calculated guideline range and reasonable. We
review a sentence for abuse of discretion. Gall v. United
States, 552 U.S. 38, 51 (2007). The first step in this review
requires us to ensure that the district court committed no
significant procedural error, such as improperly calculating the
guideline range, failing to consider the 18 U.S.C. § 3553(a)
(2006) factors, or failing to adequately explain the sentence.
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). We
then consider the substantive reasonableness of the sentence
imposed, taking into account the totality of the circumstances.
Gall, 552 U.S. at 51. On appeal, we presume that a sentence
within a properly calculated guideline range is reasonable.
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
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We have reviewed the record and conclude that the
district court did not abuse its discretion in sentencing
Underhill, and his sentence is reasonable. Because Underhill is
a career offender, and the § 924(c) conviction was the only
count of conviction, the district court properly determined the
applicable guideline range using the table in U.S. Sentencing
Guidelines Manual § 4B1.1(c)(3) (2007). Thus, after a three-
level reduction for acceptance of responsibility, Underhill’s
guideline range was 262 to 327 months in prison.
At sentencing, Underhill acknowledged he was a career
offender but requested a variance sentence based on his mother
leaving him with his grandmother when he was four years old, and
his contention that his prior felony convictions for assault and
battery of a high and aggravated nature over-represented the
underlying facts of conviction. The district court determined a
variance was not appropriate based on the particulars of his
prior violent crimes, but the court considered the mitigating
factors argued by Underhill’s attorney and selected a sentence
at the bottom of the guideline range based on the arguments.
The court considered the § 3553(a) factors, made and placed on
the record an individualized assessment of the facts in the
case, and adequately explained its decision.
Finally, we conclude that Underhill’s pro se arguments
are without merit. The district court did not sentence him
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based on the crack cocaine guideline, and the record does not
conclusively show ineffective assistance. See United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
In accordance with Anders, we have reviewed the entire
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 his client, in writing,
of his right to petition the Supreme Court of the United States
for further review. If the client 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 the client.
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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