Filed: May 14, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4538 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HEATHER DEYOUNG, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. G. Ross Anderson, Jr., Senior District Judge. (7:12-cr-00475-GRA-2) Submitted: April 10, 2014 Decided: May 14, 2014 Before AGEE and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part, vacated in part, and reman
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4538 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HEATHER DEYOUNG, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. G. Ross Anderson, Jr., Senior District Judge. (7:12-cr-00475-GRA-2) Submitted: April 10, 2014 Decided: May 14, 2014 Before AGEE and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part, vacated in part, and remand..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4538
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HEATHER DEYOUNG,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. G. Ross Anderson, Jr., Senior
District Judge. (7:12-cr-00475-GRA-2)
Submitted: April 10, 2014 Decided: May 14, 2014
Before AGEE and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Jill E.M. HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, William J. Watkins, Jr., Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Heather DeYoung appeals her conviction and sentence
after pleading guilty to conspiracy to distribute and to possess
with intent to distribute oxycodone in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C) (2012). On appeal, DeYoung contends the
district court erred under Fed. R. Crim. P. 11 in accepting her
guilty plea, and her sentence is unreasonable. We affirm her
conviction, vacate her sentence, and remand for resentencing.
“A guilty plea operates as a waiver of important
rights, and is valid only if done voluntarily, knowingly, and
intelligently, ‘with sufficient awareness of the relevant
circumstances and likely consequences.’” Bradshaw v. Stumpf,
545 U.S. 175, 183 (2005) (quoting Brady v. United States,
397
U.S. 742, 748 (1970)). In federal cases, Rule 11 of the Federal
Rules of Criminal Procedure “governs the duty of the trial judge
before accepting a guilty plea.” Boykin v. Alabama,
395 U.S.
238, 243 n.5 (1969). It “require[s] a district court, before
accepting a guilty plea, to ‘personally inform the defendant of,
and ensure that he understands, the nature of the charges
against him and the consequences of his guilty plea.’” United
States v. Hairston,
522 F.3d 336, 340 (4th Cir. 2008) (quoting
United States v. Damon,
191 F.3d 561, 564 (4th Cir. 1999)).
Rules 11(b)(1) and 11(b)(2) require the district court
to “address the defendant personally in open court” to both
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inform her of her rights as a defendant and consequences of the
plea, and to determine that her plea is knowing and voluntary.
Fed. R. Crim. P. 11(b). If the parties “discuss and reach a
plea agreement,” they “must disclose the plea agreement in open
court when the plea is offered.” Fed. R. Crim. P. 11(c). If
the Government agrees to “recommend, or agree[s] not to oppose
the defendant’s request, that a particular sentence or
sentencing range is appropriate,” the court “must advise the
defendant that the defendant has no right to withdraw the plea
if the court does not follow the recommendation or request.”
Fed. R. Crim. P. 11(c)(1)(B), (c)(3)(B); United States v.
Martinez, 277 F.3d 517, 530-31 (4th Cir. 2002); United States v.
Iaquinta,
719 F.2d 83, 84-85 (4th Cir. 1983).
We “accord deference to the trial court’s decision as
to how best to conduct the mandated colloquy.” United States v.
DeFusco, 949 F.2d 114, 116 (4th Cir. 1991); see also United
States v. Wilson,
81 F.3d 1300, 1307 (4th Cir. 1996) (noting
this “Court has repeatedly refused to script the Rule 11
colloquy, relying rather on the experience and wisdom of the
district judges below”). A guilty plea may be knowingly and
intelligently made based on information received before the plea
hearing. See
DeFusco, 949 F.2d at 116; see also
Bradshaw, 545
U.S. at 183 (trial court may rely on counsel’s assurance that
defendant was properly informed of elements of the crime).
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“A federal court of appeals normally will not correct
a legal error made in criminal trial court proceedings unless
the defendant first brought the error to the trial court’s
attention.” Henderson v. United States, 133 S. Ct. 1121, 1124
(2013) (citing United States v. Olano,
507 U.S. 725, 731
(1993)). Federal Rule of Criminal Procedure 52(b) creates an
exception to the normal rule, providing “[a] plain error that
affects substantial rights may be considered even though it was
not brought to the court’s attention.” Fed. R. Crim. P. 52(b).
Because DeYoung’s Rule 11 claim is raised for the
first time on appeal, we review for plain error. See United
States v. Vonn, 535 U.S. 55, 71 (2002);
Martinez, 277 F.3d at
525. It is thus DeYoung’s burden to show (1) error; (2) that
was plain; (3) affecting her substantial rights; and (4) that
this Court should exercise its discretion to notice the error.
See
Martinez, 277 F.3d at 529, 532. To show her substantial
rights were affected, she “must show a reasonable probability
that, but for the error, [she] would not have entered the plea.”
United States v. Dominguez Benitez,
542 U.S. 74, 83 (2004).
We have reviewed the record and the parties’ briefs,
and we conclude that DeYoung fails to make this showing. Even
assuming that the district court did plainly err under Rule 11,
DeYoung fails to assert or show that she would not have entered
her guilty plea but for the alleged error.
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We review a criminal sentence for reasonableness using
an abuse of discretion standard. United States v. McManus, 734
F.3d 315, 317 (4th Cir. 2013) (citing Gall v. United States,
552
U.S. 38, 51 (2007)). We first consider whether the district
court committed a significant procedural error, such as
improperly calculating the Guidelines range or inadequately
explaining the sentence imposed. United States v. Allmendinger,
706 F.3d 330, 340 (4th Cir.), cert. denied,
133 S. Ct. 2747
(2013). If the sentence is procedurally reasonable, we then
consider whether it is substantively reasonable, taking into
account the totality of the circumstances.
Gall, 552 U.S. at
51. We presume that a sentence within or below a properly
calculated Guidelines range is substantively reasonable. United
States v. Susi,
674 F.3d 278, 289 (4th Cir. 2012).
We review preserved sentencing claims for abuse of
discretion, and if we find abuse, reversal is required unless
the error was harmless. United States v. Lynn, 592 F.3d 572,
576 (4th Cir. 2010). “A district court abuses its discretion
when it acts arbitrarily or irrationally, fails to consider
judicially recognized factors constraining its exercise of
discretion, relies on erroneous factual or legal premises, or
commits an error of law.” United States v. Grant,
715 F.3d 552,
557 (4th Cir. 2013) (citation and internal quotations omitted).
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In sentencing, the district court must first correctly
calculate the defendant’s Guidelines range. Allmendinger, 706
F.3d at 340. The court is next required to give the parties an
opportunity to argue for what they believe is an appropriate
sentence, and the court must consider those arguments in light
of the factors set forth in 18 U.S.C. § 3553(a) (2012).
Id.
When rendering a sentence, the court must make and place on the
record an individualized assessment based on the particular
facts of the case. United States v. Carter,
564 F.3d 325, 328,
330 (4th Cir. 2009). In explaining a sentence, the “sentencing
judge should set forth enough to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned
basis for exercising his own legal decisionmaking authority.”
Rita v. United States,
551 U.S. 338, 356 (2007). Where a
defendant or the Government presents nonfrivolous reasons for
imposing a sentence outside the Guidelines, the district court
should address those arguments and explain why it has rejected
them. See
Rita, 551 U.S. at 357;
Lynn, 592 F.3d at 584-85.
We have reviewed the record and conclude that the
district court failed to adequately explain its sentence, and
the sentence is procedurally unreasonable. DeYoung and her co-
defendant, who was her ex-husband, pled guilty together. At
their guilty plea hearing, the Government placed on the record
that it had agreed to make sentencing recommendations in their
6
cases. Based on DeYoung’s minor role in the conspiracy, the
Government recommended that she be sentenced to twelve months of
home confinement. In her co-defendant’s case, the Government
recommended a reduction in drug weight and no enhancement for a
leadership role in the conspiracy. The district court sentenced
the co-defendant as recommended by the parties.
At DeYoung’s sentencing that immediately followed, she
requested that the district court likewise sentence her as
recommended by the Government, or if the court determined that a
prison sentence was appropriate, that it give her the same
benefit that her co-defendant received from the reduction in
drug weight. The district court rejected both requests without
explanation, sentencing her instead to 70 months in prison, the
bottom of her advisory Guidelines range. While the co-defendant
was more culpable, he received the same sentence.
Because the record does not make clear that the
district court considered DeYoung’s arguments when sentencing
her or had a reasoned basis for rejecting them, we conclude that
the court erred by ignoring her “nonfrivolous arguments for a
different sentence and failing to explain the sentencing
choice.” Lynn, 592 F.3d at 584-85. Moreover, because we cannot
say with fair assurance that the district court’s explicit
consideration of DeYoung’s arguments would not have affected the
sentence imposed, we conclude that the Government has not shown
7
that the error was harmless. See United States v. Boulware, 604
F.3d 832, 838-40 (4th Cir. 2010).
Accordingly, we affirm DeYoung’s conviction, vacate
her sentence, and remand for resentencing. We also direct that
this case be assigned to a different judge on remand. See
United States v. Lentz, 383 F.3d 191, 221-22 (4th Cir. 2004).
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 IN PART,
VACATED IN PART,
AND REMANDED
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