Filed: Sep. 23, 2013
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4964 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. COREY DEWAYNE KERR, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:11-cr-00219-NCT-1) Submitted: June 13, 2013 Decided: September 23, 2013 Before GREGORY, SHEDD, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Harvey Ale
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4964 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. COREY DEWAYNE KERR, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:11-cr-00219-NCT-1) Submitted: June 13, 2013 Decided: September 23, 2013 Before GREGORY, SHEDD, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Harvey Alex..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4964
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COREY DEWAYNE KERR,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:11-cr-00219-NCT-1)
Submitted: June 13, 2013 Decided: September 23, 2013
Before GREGORY, SHEDD, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Harvey Alexander Carpenter, IV, LAW OFFICES OF H.A. CARPENTER
IV, Greensboro, North Carolina, for Appellant. Ripley Eagles
Rand, United States Attorney, Graham Tod Green, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Defendant Corey Dewayne Kerr pled guilty to maintaining a
residence for the purpose of manufacturing or distributing
cocaine base. Approximately six months later, Defendant moved
to withdraw his plea, which the district court denied. Finding
Defendant accountable for 2,414 grams of crack cocaine, the
district court sentenced him to 240 months in prison. On
appeal, Defendant argues that the district court erred by
denying his motion to withdraw his plea and by finding him
accountable for 2,414 grams of crack cocaine. For the reasons
discussed below, we affirm.
I.
Following a law enforcement investigation of cocaine
distribution in two North Carolina counties, Defendant was
indicted for conspiracy to distribute 280 grams or more of
cocaine base in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A).
Seven months later, the government filed a bill of information
further charging Defendant with maintaining three residences for
the purpose of manufacturing or distributing cocaine base in
violation of 21 U.S.C. §§ 856(a)(1) and (b). In a written plea
agreement, Defendant agreed to plead guilty to maintaining a
drug-involved residence in exchange for the dismissal of the
conspiracy to distribute charge.
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At Defendant’s plea hearing, the district court conducted a
Rule 11 plea colloquy during which it informed Defendant that
his attorney could not, at that point, accurately calculate his
sentencing guideline range. Later during the hearing,
Defendant’s attorney agreed that there was a factual basis for
Defendant’s plea, but noted that Defendant did not “agree to all
of the time frames and [drug] quantities” alleged by the
government’s witness. J.A. 61. Defendant then pleaded guilty
at the plea hearing.
Subsequently, Defendant sought to withdraw his guilty plea,
alleging that his attorney mislead him into pleading guilty by
failing to inform him about possible sentencing outcomes.
Following a hearing, the district court found that Defendant was
properly advised that his attorney could not correctly estimate
his sentencing guidelines range before his guilty plea and that
his actual sentence could be above or below that range. The
court therefore denied Defendant’s withdrawal motion.
At Defendant’s sentencing hearing, several witnesses
testified about receiving various amounts of crack cocaine from
Defendant. Based on that testimony, the district court found
Defendant accountable for 2,414 grams of crack cocaine. The
court then sentenced Defendant to 240 months imprisonment.
On appeal, Defendant contends that the district court erred
by denying his motion to withdraw his guilty plea. He further
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argues that the district court erred by finding him accountable
for 2,414 grams of crack cocaine.
II.
A.
Defendant first challenges the district court’s denial of
his motion to withdraw his guilty plea. We review the district
court’s denial of Defendant’s motion for abuse of discretion.
See United States v. Ubakanma, 215 F.3d 423, 424 (4th Cir.
2000).
A defendant may withdraw a guilty plea before sentencing if
he can show a fair and just reason for requesting the
withdrawal. United States v. Nicholson, 676 F.3d 376, 383 (4th
Cir. 2012); Fed. R. Crim. P. 11(d)(2)(B). A properly conducted
Rule 11 guilty plea colloquy raises a strong presumption that
the plea is final and binding.
Id. at 384. When considering a
withdrawal motion, courts typically consider (1) whether the
defendant has offered credible evidence that his plea was not
knowing or not voluntary, (2) whether the defendant has credibly
asserted his legal innocence, (3) whether there has been a delay
between the entering of the plea and the filing of the motion,
(4) whether defendant has had close assistance of competent
counsel, (5) whether withdrawal will cause prejudice to the
government, and (6) whether it will inconvenience the court and
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waste judicial resources. United States v. Moore, 931 F.2d 245,
248 (4th Cir. 1991).
Defendant contends that he would not have pled guilty if
his attorney had properly advised him about the possible
sentencing outcomes. Because Defendant does not challenge the
district court’s Rule 11 colloquy, there is a strong presumption
that Defendant’s plea is valid and binding. See Nicholson, 676
F.3d at 384.
Turning to the Moore factors, we conclude that they do not
provide a fair and just reason for withdrawing Defendant’s
guilty plea. Regarding the first and fourth factors, while
Defendant argues that his attorney was ineffective, he has not
offered credible evidence that his plea was unknowing or
involuntary. The district court told Defendant during his plea
hearing that it would later determine his actual sentence,
ranging from zero to twenty years, by applying federal
sentencing laws. Further, it told Defendant that “there is no
way anybody today can accurately calculate whatever your Federal
Sentencing Guideline Range may eventually be . . . . Your lawyer
may be right, but he or she may be way off. . . . [I]f anybody
has suggested you’re going to receive a sentence of whatever,
understand that’s just an estimate.” J.A. 56-57. As to the
remaining relevant factors, they do not favor Defendant:
Defendant has not asserted his legal innocence and he filed his
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withdrawal motion approximately six months after his guilty
plea. Accordingly, we conclude that the district court did not
abuse its discretion by denying Defendant’s motion to withdraw
his guilty plea.
B.
Defendant next contends that the district court erred by
finding him accountable for 2,414 grams of crack cocaine.
We review a sentence for abuse of discretion. Gall v.
United States, 552 U.S. 38, 51 (2007). Under this standard, we
first ensure that the district court committed no significant
procedural error, such as improperly calculating the Sentencing
Guidelines range.
Id. In assessing whether a sentencing court
properly applied the Guidelines, we review the court’s factual
findings for clear error. United States v. Osborne,
514 F.3d
377, 387 (4th Cir. 2008). If a sentence is procedurally
reasonable, we then consider the substantive reasonableness of
the sentence under an abuse-of-discretion standard.
Gall, 552
U.S. at 51.
For sentencing purposes, the government must prove the drug
quantity attributable to a particular defendant by a
preponderance of the evidence. United States v. Bell, 667 F.3d
431, 441 (4th Cir. 2011). The district court is afforded broad
discretion as to what information to credit in making its drug
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quantity calculations. United States v. Cook, 76 F.3d 596, 604
(4th Cir. 1996). When the drug quantity is not proven by actual
seizures or comparable direct evidence, the sentencing court may
approximate the quantity.
Bell, 667 F.3d at 441. While courts
can rely on lay witness testimony as to the drug quantity,
courts should sentence at the low end of the witness’s range if
the witness’s approximation is uncertain.
Id.
At his sentencing hearing, Defendant testified that he sold
approximately 90 grams of crack cocaine during the relevant time
period. But the government’s three witnesses testified that
Defendant sold them in excess of a total of 3,000 grams of crack
cocaine during that time. The district court believed the
government’s witnesses and disbelieved Defendant’s testimony.
Moreover, in calculating the drug amount attributable to
Defendant, the district court “gave [Defendant] the benefit”
where the witnesses testified to a drug quantity range. J.A.
263. Given these facts, we cannot conclude that the district
court clearly erred by finding him accountable for 2,414 grams
of crack cocaine.
III.
For the foregoing reasons, we affirm Defendant’s conviction
and sentence.
AFFIRMED
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