Filed: Dec. 29, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5117 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHANEKA PENIX, a/k/a Tweet, Defendant - Appellant. No. 09-4330 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEVIN GARY, a/k/a Kayo, a/k/a Red Eyes, a/k/a Human Torch, Defendant - Appellant. Appeals from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:08-cr-00086-WDQ-13; 1:08-cr-00086-WDQ-3)
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5117 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHANEKA PENIX, a/k/a Tweet, Defendant - Appellant. No. 09-4330 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEVIN GARY, a/k/a Kayo, a/k/a Red Eyes, a/k/a Human Torch, Defendant - Appellant. Appeals from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:08-cr-00086-WDQ-13; 1:08-cr-00086-WDQ-3) S..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5117
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHANEKA PENIX, a/k/a Tweet,
Defendant - Appellant.
No. 09-4330
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN GARY, a/k/a Kayo, a/k/a Red Eyes, a/k/a Human Torch,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:08-cr-00086-WDQ-13; 1:08-cr-00086-WDQ-3)
Submitted: November 29, 2010 Decided: December 29, 2010
Before MOTZ, SHEDD, and DAVIS, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Richard C. Bittner, LAW OFFICES OF RICHARD C. BITTNER, Glen
Burnie, Maryland; Timothy J. Sullivan, BRENNAN, SULLIVAN &
MCKENNA, LLC, Greenbelt, Maryland, for Appellants. Rod J.
Rosenstein, United States Attorney, Christopher M. Mason,
Special Assistant United States Attorney, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Pursuant to plea agreements, Shaneka Penix and Kevin
Gary pled guilty to conspiracy to participate in a racketeering
enterprise, in violation of 18 U.S.C. § 1962(d) (2006). Penix
also pled guilty to conspiracy to distribute and possess with
intent to distribute fifty grams or more of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), 846 (2006). The district
court sentenced Penix to the statutorily mandated minimum
sentence of 120 months for her involvement in the drug
conspiracy, with a concurrent 120-month sentence imposed for her
involvement in the racketeering conspiracy. The court sentenced
Gary to 360 months, as stipulated in the Fed. R. Crim. P.
11(c)(1)(C) provision of his plea agreement.
On appeal, counsel have filed a joint brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
stating that, in their view, there are no meritorious issues for
appeal. Counsel question, however, whether the district court
erred in finding Penix ineligible for sentencing consideration
under the safety valve provisions of 18 U.S.C. § 3553(f) (2006),
and whether the district court complied with Fed. R. Crim. P. 11
in accepting Gary’s guilty plea. The Government declined to
file a brief and does not seek to enforce the waiver of appeal
rights contained in the plea agreements. Appellants were
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notified of their opportunity to file pro se supplemental briefs
but have not done so.
Because neither Penix nor Gary moved in the district
court to withdraw their guilty pleas, the Rule 11 hearings are
reviewed for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). To establish plain error, Appellants
“must show: (1) an error was made; (2) the error is plain; and
(3) the error affects substantial rights.” United States v.
Massenburg,
564 F.3d 337, 342-46 (4th Cir. 2009) (reviewing
unpreserved Rule 11 error). “The decision to correct the error
lies within our discretion, and we exercise that discretion only
if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.”
Id. at 343 (internal
quotation marks and citations omitted). Our review of the
record reveals no Rule 11 error. The court ensured that the
guilty pleas were knowing and voluntary and supported by
adequate factual bases. United States v. DeFusco,
949 F.2d 114,
116, 119-20 (4th Cir. 1991). Therefore, we affirm Appellants’
convictions.
We conclude that we do not have jurisdiction to review
Gary’s sentence. The statute governing appellate review of a
sentence, 18 U.S.C. § 3742(c) (2006), limits the circumstances
under which a defendant may appeal a sentence to which he
stipulated in a Rule 11(c)(1)(C) plea agreement to claims that
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“his sentence was imposed in violation of law [or] was imposed
as a result of an incorrect application of the sentencing
guidelines[.]” United States v. Sanchez, 146 F.3d 796, 797 &
n.1 (10th Cir. 1998); United States v. Littlefield,
105 F.3d
527, 527-28 (9th Cir. 1997).
Gary’s sentence was not imposed in violation of law
and did not result from an error in applying the guidelines.
See United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir.
2005) (stating that “[a] sentence imposed under a Rule
11(c)(1)(C) plea arises directly from the agreement itself, not
from the Guidelines”);
Littlefield, 105 F.3d at 528. Because we
are barred from reviewing Gary’s sentence imposed pursuant to
his Rule 11(c)(1)(C) plea agreement under 18 U.S.C. § 3742(c)
(2006), and none of the exceptions apply, we dismiss Gary’s
appeal of his sentence.
We review Penix’s sentence under a deferential abuse-
of-discretion standard. See 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 Guidelines
range.” United States v. Osborne,
514 F.3d 377, 387 (4th Cir.)
(internal quotation marks, citations and alterations omitted),
cert. denied,
128 S. Ct. 2525 (2008). We then consider the
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substantive reasonableness of the sentence, taking into account
the totality of the circumstances. Gall, 552 U.S. at 51.
As a result of her guilty plea to an offense that
involved fifty grams or more of cocaine base, Penix was subject
to a statutorily mandated minimum term of imprisonment of ten
years. Under current jurisprudence, the district court had no
discretion to sentence Penix below the statutory minimum.
United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005).
We conclude that the district court did not err in its
determination that Penix was not eligible for the “safety valve”
provision to reduce her sentence, as Penix’s criminal history
points were properly calculated under USSG § 4A1.1(c), (d).
Consequently, we conclude that Penix’s 120-month imprisonment
term was reasonable and affirm her sentence.
In accordance with Anders, we have reviewed the record
in these cases and have found no meritorious issues for appeal.
We therefore affirm Penix’s and Gary’s convictions, affirm
Penix’s sentence, and dismiss Gary’s appeal of his sentence.
This court requires that counsel inform Penix and Gary, in
writing, of the right to petition the Supreme Court of the
United States for further review. If either 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
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state that copies thereof were served on Penix and Gary. 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 IN PART;
DISMISSED IN PART
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