United States v. Unique Brunson ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4264
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
UNIQUE SONDRE BRUNSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Terry L. Wooten, Senior District Judge. (3:20-cr-00644-TLW-8)
Submitted: October 16, 2023 Decided: November 14, 2023
Before NIEMEYER, THACKER, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Joshua S. Kendrick, KENDRICK & LEONARD, P.C., Greenville, South
Carolina, for Appellant. Adair F. Boroughs, United States Attorney, Benjamin Neale
Garner, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Unique Sondre Brunson (“Appellant”) appeals his conviction and 56 month
sentence imposed following his guilty plea to distribution of cocaine base in violation of
21 U.S.C. § 841(a)(1), (b)(1)(C). On appeal, Appellant’s counsel initially filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there were no
meritorious issues for appeal but questioning whether Appellant’s guilty plea is valid and
whether his sentence is reasonable.
Appellant was notified of his right to file a pro se supplemental brief, but he did not
do so. The Government declined to file a response brief at that time. Upon review of the
case pursuant to Anders, we ordered supplemental briefs from the parties to address
specifically whether the district court erred when it found that Appellant made a credible
threat to use violence and therefore applied a two level enhancement pursuant to United
States Sentencing Guidelines (“Guidelines”) § 2D1.1(b)(2).
Finding no reversible error, we affirm.
I.
This case arises out of a lengthy investigation by federal and local law enforcement,
including the Sumter County Sheriff’s Office, into drug trafficking activity in Sumter
County, South Carolina. During the course of the investigation, an undercover source
conducted a controlled buy from Appellant on April 3, 2019. Over the course of the next
ten months, officers conducted at least seven more controlled buys from Appellant.
The Sumter County Sheriff’s Office executed a search warrant on February 19, 2020
at a house where Appellant was known to frequently sell drugs. Appellant fled from the
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house but was quickly apprehended by Investigator Rosario. Appellant was placed in the
front seat of Investigator Rosario’s car where he saw a photograph of Investigator Rosario’s
son. Though the details are unclear, Appellant admits that he and Investigator Rosario
were “going back and forth with each other,” J.A. 98, and that Appellant “thought [he] saw
a picture of [Rosario] up in his car, and I just started saying the name on the picture. Never
was no threats or anything . . . I just keep calling the name out like on the ID that I saw,”
J.A. 99. *
As a result of the investigation, Appellant faced a host of state and federal charges.
Relevant here, Appellant pled guilty in South Carolina state court to “Threatening Life,
Person, or Family of Public Official, Teacher, Principal” in violation of South Carolina
Code Section 16-3-1040(A), based on his threat to cause bodily harm or death to
Investigator Rosario’s son during the execution of the search warrant. As for his federal
charges, Appellant pled guilty to count four of the Indictment against him -- possession
with intent to distribute a quantity of cocaine base on April 3, 2019, in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(c).
II.
Before accepting a guilty plea, the district court must conduct a plea colloquy during
which it informs the defendant of, and determines that the defendant understands, the
nature of the charge to which he is pleading guilty, the minimum and maximum penalties
he faces, and the rights he is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1);
*
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
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United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). The court also must ensure
that the defendant’s plea is voluntary and not the result of threats, force, or promises outside
the plea agreement, Fed. R. Crim. P. 11(b)(2), and that a sufficient factual basis supports
the plea, Fed. R. Crim. P. 11(b)(3).
As noted, Appellant now questions the validity of his guilty plea. Because
Appellant did not seek to withdraw his guilty plea in the district court, we review the Rule
11 hearing for plain error. United States v. Williams, 811 F.3d 621, 622 (4th Cir. 2016).
To demonstrate plain error, Appellant must show that “(1) an error was made; (2) the error
is plain; (3) the error affects substantial rights; and (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v. Comer,
5 F.4th 535, 548 (4th Cir. 2021) (internal quotation marks omitted). In the guilty plea
context, a defendant satisfies his burden to show that an error affected his substantial rights
by establishing a reasonable probability that he would not have pled guilty but for the error.
United States v. Sanya, 774 F.3d 812, 816 (4th Cir. 2014).
Our review of the plea hearing reveals several omissions in the Rule 11 colloquy.
See Fed. R. Crim. P. 11(b)(1)(E), (H), (L), (M), (N), (O). Nevertheless, the district court
generally ensured that Appellant’s plea was knowing, voluntary, and supported by an
independent factual basis. And, significantly, nothing in the record suggests that, but for
the errors in the plea colloquy, Appellant would have elected to proceed to trial. See Sanya,
774 F.3d at 816. We therefore conclude that Appellant’s guilty plea is valid.
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III.
Turning to Appellant’s sentence, we review a sentence for reasonableness, applying
a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007).
We first “ensure[] that the district court committed no significant procedural error, such as
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.” United States
v. Barronette, 46 F.4th 177, 208 (4th Cir. 2022) (internal quotation marks omitted), cert.
denied, 143 S. Ct. 414 (2022).
In evaluating Guidelines calculations, “we review the [district] court’s factual
findings for clear error and its legal conclusions de novo.” United States v. Shephard, 892
F.3d 666, 670 (4th Cir. 2018). “We will conclude that the ruling of the district court is
clearly erroneous only when, after reviewing all the evidence, we are left with the definite
and firm conviction that a mistake has been committed.” United States v. Steffen, 741 F.3d
411, 415 (4th Cir. 2013) (internal quotation marks omitted). “The [G]overnment bears the
burden of proving the facts supporting [a sentencing] enhancement by a preponderance of
the evidence.” United States v. Andrews, 808 F.3d 964, 968 (4th Cir. 2015); see United
States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (describing standard).
“If [we] find[] no significant procedural error, [we] then consider[] the substantive
reasonableness of the sentence imposed.” United States v. Arbaugh, 951 F.3d 167, 172
(4th Cir. 2020) (internal quotation marks omitted). Substantive reasonableness review
“takes into account the totality of the circumstances to determine whether the sentencing
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court abused its discretion in concluding that the sentence it chose satisfied the standards
set forth in § 3553(a).” United States v. Nance, 957 F.3d 204, 212 (4th Cir. 2020) (internal
quotation marks omitted). We presume that a sentence within the properly calculated
Guidelines range is substantively reasonable. United States v. Gutierrez, 963 F.3d 320,
344 (4th Cir. 2020). Appellant can rebut that presumption only by demonstrating “that the
sentence was unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” Id.(internal quotation marks omitted).
Our review of the record here reveals that the sentence is both procedurally and
substantively reasonable. The district court resolved all disputed matters in the Presentence
Investigation Report (“PSR”) and made factual findings that are not clearly erroneous in
light of the sentencing record as a whole. See Steffen, 741 F.3d at 415. Based on these
findings, the district court calculated Appellant’s Guidelines range.
As to § 2D1.1(b)(2) of the Guidelines, the PSR included the enhancement for
making a credible threat of violence based on, among other facts, Appellant’s guilty plea
in state court to “threaten[ing] to cause bodily harm or death to the son of Investigator
Rosario” in violation of South Carolina Code Section 16-3-1040(A).
Notably, Appellant did not object to the enhancement prior to the sentencing hearing
but, when he took the stand, Appellant testified that he “never threatened him, but me and
him, like, we was going back and forth with each other. I can say that. But I never threaten,
never made no threats at all.” J.A. 98. Later in the hearing, the district court asked, “Was
there an objection to the threat or not in this case?” J.A. 171. Defense counsel responded,
“Your honor, that’s included,” id., but presented no further argument on the objection. The
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district court overruled the objection based on the testimony of the Government’s case
agent that his investigation had shown that Appellant threatened Investigator Rosario’s son.
And the district court accepted the PSR which, again, included the undisputed fact of
Appellant’s conviction in state court for making the threat. Given these facts, we conclude
that the district court did not clearly err in applying the two level enhancement.
The district court properly calculated the Guidelines range and provided a sufficient
explanation for the sentence imposed, grounded in various relevant 18 U.S.C. § 3553(a)
factors. Thus, we find no procedural error in the sentencing. Moreover, Appellant was
sentenced to a within-Guidelines sentence of 56 months of imprisonment, and he fails to
rebut the presumption of substantive reasonableness afforded his sentence. See Gutierrez,
963 F.3d at 344.
IV.
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal. We, therefore, affirm the district court’s
judgment. 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.
This court requires that counsel inform Appellant, in writing, of the right to petition
the Supreme Court of the United States for further review. If Appellant 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 Appellant.
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AFFIRMED
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