United States v. William Reel, II

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4480
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM ANDREW REEL, II,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Frank D. Whitney, District Judge. (3:19-cr-00189-FDW-DCK-1)
Submitted: July 27, 2021 Decided: August 13, 2021
Before MOTZ, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles Robinson Brewer, Asheville, North Carolina, for Appellant. William T. Stetzer,
Acting United States Attorney, Anthony J. Enright, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, William Andrew Reel, II, pled guilty to
conspiracy to distribute and possess with intent to distribute a mixture and substance
containing a detectable amount of methamphetamine and methamphetamine (actual), in
violation of 21 U.S.C. §§ 841(b)(1)(A), 846, and possession with intent to distribute 50
grams or more of methamphetamine (actual), in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A). The district court sentenced Reel to concurrent 360-month terms of
imprisonment, the bottom of the advisory Sentencing Guidelines range. Reel appeals,
raising claims of prosecutorial misconduct and ineffective assistance of counsel. We
affirm.
When asserting a claim of prosecutorial misconduct, the defendant bears the burden
of showing “(1) the prosecutor’s remarks or conduct were improper and (2) that such
remarks or conduct prejudicially affected [the defendant’s] substantial rights so as to
deprive him of a fair [sentencing proceeding].” United States v. Benson, 957 F.3d 218, 234
(4th Cir.) (internal quotation marks omitted), cert. denied, 141 S. Ct. 934, and cert. denied,
141 S. Ct. 935 (2020). Where, as here, the claim of prosecutorial misconduct was not
raised or presented to the trial court, we review for plain error. United States v. Alerre, 430
F.3d 681, 689 (4th Cir. 2005). “In reviewing for plain error, we must affirm unless an
appellant can show that (1) an error was made, (2) it was plain, and (3) it affected the
appellant’s substantial rights.” Id.2
Reel contends that the Government engaged in prosecutorial misconduct by
breaching the plea agreement. Under the plea agreement, the parties agreed to jointly
recommend to the court that, for purposes of the Sentencing Guidelines:
The amount of mixture and substance containing a detectable amount of
methamphetamine, a Schedule II controlled substance that was known to or
reasonably foreseeable by the defendant (including relevant conduct) was at
least 15 kilograms but less than 45 kilograms for a Base Offense Level of 36.
In Reel’s view, the Government violated the plea agreement because, in reliance on the
information provided by the Government, the court held Reel accountable for 53,111
kilograms of converted drug weight.
Under the Guidelines, “‘converted drug weight’ . . . refers to a nominal reference
designation that is used as a conversion factor in the Drug Conversion Tables set forth in
the Commentary [(USSG § 2D1.1 cmt. (n.8(D))] . . . to determine the offense level . . .
when combining differing controlled substances.” U.S. Sentencing Guidelines Manual
§ 2D1.1(c) cmt. (n.*K) (2018). In this case, there were differing controlled substances:
methamphetamine and methamphetamine (actual). Under the Drug Conversion Tables, 1
gram of methamphetamine equals 2 kilograms of converted drug weight and 1 gram of
actual methamphetamine equals 20 kilograms of converted drug weight. USSG § 2D1.1
cmt. n.8(D) (Drug Conversion Tables).
The “53,311 kg” for which Reel was held accountable was not 53,311 kilograms of
methamphetamine, but rather the converted drug weight of 7000 grams (7 kilograms) of
methamphetamine plus 1965.55 grams of actual methamphetamine. The base offense level
for 53,311 kilograms of converted drug weight is 36, USSG § 2D1.1(c)(2)—the base
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offense level the parties agreed to recommend under the plea agreement. Thus, the
Government did not breach the plea agreement and did not engage in prosecutorial
misconduct.
Reel contends that trial counsel was ineffective for failing to bring to the district
court’s attention the Government’s purported prosecutorial misconduct. Claims of
ineffective assistance of counsel will be considered on direct appeal only when the record
conclusively shows that counsel was ineffective. United States v. Benton, 523 F.3d 424,
435 (4th Cir. 2008). To demonstrate ineffective assistance of counsel, Reel must satisfy
the two-part test set out in Strickland v. Washington, 466 U.S. 668 (1984). He “must show
that counsel’s performance was [constitutionally] deficient” and “that the deficient
performance prejudiced the defense.” Id. at 687. Because the Government’s conduct of
which Reel complains did not amount to prosecutorial misconduct, the record does not
show ineffective assistance by trial counsel for failing to raise the matter in the district
court. We therefore decline to address this claim on direct appeal.
Accordingly, we affirm the criminal 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.
AFFIRMED
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