United States v. Kelvin Reeves

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4869
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KELVIN JAMILLE REEVES, a/k/a Knowledge,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., Senior
District Judge. (6:11-cr-02026-GRA-9)
Submitted: June 19, 2013 Decided: July 18, 2013
Before WILKINSON, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard W. Vieth, Spartanburg, South Carolina, for Appellant.
William N. Nettles, United States Attorney, E. Jean Howard,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kelvin Jamille Reeves appeals his conviction and 121-
month sentence imposed following his guilty plea to conspiracy
to possess with intent to distribute and distribute 280 grams or
more of crack, in violation of 21 U.S.C. § 846 (2006). On
appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal but questioning whether the
district court committed sentencing error. Reeves was notified
of his right to file a pro se supplemental brief but has not
done so. Following a review of the record, we directed the
parties to submit supplemental briefs addressing whether the
district court committed plain error by concluding that Reeves’
plea was supported by an independent factual basis. Finding no
reversible error, we affirm.
Because Reeves did not seek to withdraw his plea in
the district court or timely object to any alleged violation of
Fed. R. Crim. P. 11, we review his plea colloquy for plain
error. United States v. Massenburg, 564 F.3d 337, 342 (4th Cir.
2009). To establish plain error, Reeves must show that (1) the
district court erred, (2) the error was plain, and (3) the error
affects his substantial rights. United States v. Olano, 507
U.S. 725, 732 (1993). In the guilty plea context, an error
affects a defendant’s substantial rights if he demonstrates a
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reasonable probability that he would not have pled guilty but
for the error. Massenburg, 564 F.3d at 343. Even if these
requirements are met, we will correct such error only if it
“seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Olano, 507 U.S. at 732 (internal
quotation marks and alteration omitted).
When accepting a guilty plea, the district court must
find that the plea is supported by an independent factual basis.
Fed. R. Crim. P. 11(b)(3). The court possesses wide discretion
in determining the factual basis and may rely on anything
appearing in the record. United States v. Ketchum, 550 F.3d
363, 366-67 (4th Cir. 2008). The court need only be
“subjectively satisfied” that the factual basis is sufficient to
establish each element of the offense. Id. at 366. In reaching
this determination, the court is not required to find that a
jury would convict the defendant, “or even that the defendant is
guilty by a preponderance of the evidence. The district court
must assure itself simply that the conduct to which the
defendant admits is in fact an offense under the statutory
provision under which he is pleading guilty.” United States v.
Carr, 271 F.3d 172, 178-79 n.6 (4th Cir. 2001) (internal
quotation marks and citation omitted).
To prove a crack conspiracy, the government must
establish that “an agreement to distribute and possess [crack]
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with intent to distribute existed between two or more persons”
and that the defendant knew of and knowingly and voluntarily
became part of the conspiracy. United States v. Yearwood, 518
F.3d 220, 225-26 (4th Cir. 2008) (internal quotation marks
omitted). “The gravamen of the crime is an agreement to
effectuate a criminal act.” Id. at 226 (internal quotation
marks omitted); see United States v. Edmonds, 679 F.3d 169, 173-
74 (4th Cir.) (discussing distinction between conspiracy and
underlying drug offense), vacated and remanded on other grounds,
133 S. Ct. 376, reissued in part, 700 F.3d 146, 147 (4th Cir.
2012).
In proffering evidence to support Reeves’ plea, the
Government recounted that the indictment against Reeves and
eleven co-defendants charged a broad drug conspiracy in
Greenville County, South Carolina. The Government stated that a
confidential informant had made a small purchase of crack from
Reeves and that other individuals admitted to supplying Reeves
with crack cocaine. When asked to confirm these facts, Reeves
readily admitted that he had sold crack, but he adamantly denied
involvement in a conspiracy. Of the numerous individuals named
in the indictment as co-conspirators, Reeves acknowledged that
he knew his brothers, but he did not provide any further
testimony to indicate his knowing or voluntary participation in
the charged conspiracy.
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While it is true that, “[o]nce the Government proves a
conspiracy, the evidence need only establish a slight connection
between a defendant and the conspiracy to support conviction,”
United States v. Green, 599 F.3d 360, 367 (4th Cir. 2010), we
question whether the evidence proffered by the Government was
sufficient to prove the requisite nexus between Reeves and the
charged conspiracy. Neither the confidential informant, nor the
individuals who purportedly provided drugs to Reeves, were
identified as co-conspirators. The Government provided no
indication of the quantity, frequency, or type of transactions
in which Reeves allegedly engaged, as necessary to use these
transactions as evidence of a tacit agreement to distribute
further. See Edmonds, 679 F.3d at 174; United States v. Reid,
523 F.3d 310, 317 (4th Cir. 2008); United States v. Banks, 10
F.3d 1044, 1054 (4th Cir. 1993). Reeves’ receipt and sale of
drugs, standing alone, does not establish that he entered into
an agreement with his alleged co-conspirators. Moreover, the
mere fact that Reeves knew or was related to certain co-
conspirators does not demonstrate either his knowledge of the
conspiracy or his knowing and voluntary participation in a
conspiracy with these individuals.
In reviewing a district court’s acceptance of a guilty
plea, “we will not find an abuse of discretion so long as the
district court could reasonably have determined that there was a
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sufficient factual basis based on the record before it.”
Ketchum, 550 F.3d at 367 (emphasis added) (internal quotation
marks omitted). However, Reeves pled guilty before his
presentence report was prepared, and the court did not defer
accepting the plea until sentencing. Moreover, while the court
may have been aware of other facts supporting Reeves’
involvement based on the pleas and presentence reports of his
co-defendants, information about these defendants’ proceedings
is not available in the record on appeal, and we can only
speculate as to the content of these materials and the extent to
which the district court may have relied upon them. When
coupled with Reeves’ adamant denial of participation in a
conspiracy, these facts may indeed be inadequate to establish an
independent factual basis for the plea.
Ultimately, however, we need not resolve this
question. Reeves bears the burden to demonstrate each element
of plain error. Importantly, Reeves does not assert that, had
the court been more exacting in ensuring factual support for the
plea, he would have chosen not to plead guilty and would have
insisted on proceeding to trial. In light of the additional
facts detailed in the presentence report, to which Reeves does
not object, we conclude that Reeves has not met his burden to
establish that any error in accepting the plea affects his
substantial rights. Moreover, these facts provide adequate
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support for Reeves’ plea such that any error would not
“seriously affect[] the fairness, integrity or public reputation
of judicial proceedings.” Olano, 507 U.S. at 732 (internal
quotation marks and alteration omitted).
In his Anders brief, counsel also questions whether
the district court committed sentencing error. We review a
sentence imposed by the district court for reasonableness under
a deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 46, 51 (2007). We first examine the
sentence for “significant procedural error,” including improper
calculation of the Guidelines range, insufficient consideration
of the 18 U.S.C. § 3553(a) (2006) factors, and inadequate
explanation of the sentence imposed. Gall, 552 U.S. at 51. If
we find the sentence procedurally reasonable, we also must
examine the substantive reasonableness of the sentence under the
totality of the circumstances. Id. A within-Guidelines
sentence is presumed reasonable on appeal, and the defendant
bears the burden to “rebut the presumption by demonstrating that
the sentence is unreasonable when measured against the § 3553(a)
factors.” United States v. Montes-Pineda, 445 F.3d 375, 379
(4th Cir. 2006) (internal quotation marks omitted).
Unpreserved arguments regarding sentencing error are
reviewed for plain error. See United States v. Streiper, 666
F.3d 288, 292 (4th Cir. 2012); United States v. Lynn, 592 F.3d
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572, 577 (4th Cir. 2010). A defendant preserves a claim that
the district court failed to properly consider the § 3553(a)
factors and to adequately explain the chosen sentence “[b]y
drawing arguments from § 3553 for a sentence different than the
one ultimately imposed.” Lynn, 592 F.3d at 578. Because Reeves
did not object to the presentence report, request any specific
sentence, or raise any arguments drawing from the § 3553(a)
factors, we review these issues for plain error. See Streiper,
666 F.3d at 292; Lynn, 592 F.3d at 577-78.
We have thoroughly reviewed the record and discern no
reversible sentencing error. The district court properly
calculated Reeves’ Guidelines range, conducted an individualized
assessment of his case, and announced a justification for its
sentence grounded in the relevant § 3553(a) factors. To the
extent the court may have erred in not considering Reeves’
history and characteristics more explicitly or in not permitting
the Government an opportunity to present arguments at
sentencing, we conclude such error did not affect Reeves’
substantial rights; counsel did not request a below-Guidelines
sentence, and the court imposed a sentence at the bottom of the
Guidelines range and only one month above the statutory
mandatory minimum. Neither Reeves nor the available record
provides a basis to rebut the presumption of substantive
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reasonableness accorded his within-Guidelines sentence. See
Montes-Pineda, 445 F.3d at 379.
In accordance with Anders, we have reviewed the 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 Reeves, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Reeves 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 Reeves.
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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