Filed: Sep. 29, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4258 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DEMARIO JEMEL TERRY, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Charlotte. James A. Beaty, Jr., Senior District Judge. (1:13-cr-00243-JAB-1) Submitted: September 25, 2014 Decided: September 29, 2014 Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished p
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4258 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DEMARIO JEMEL TERRY, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Charlotte. James A. Beaty, Jr., Senior District Judge. (1:13-cr-00243-JAB-1) Submitted: September 25, 2014 Decided: September 29, 2014 Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished pe..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4258
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMARIO JEMEL TERRY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Charlotte. James A. Beaty, Jr.,
Senior District Judge. (1:13-cr-00243-JAB-1)
Submitted: September 25, 2014 Decided: September 29, 2014
Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Amy Lee Copeland, ROUSE & COPELAND LLC, Savannah, Georgia, for
Appellant. Michael A. DeFranco, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demario Jemel Terry pled guilty to possession of a
firearm in furtherance of a drug trafficking crime in violation
of 18 U.S.C. § 924(c)(1)(1)(A)(i) (2012) and was sentenced to
five years of imprisonment. After pleading guilty, Terry filed
a motion to withdraw his plea, but withdrew that motion fifteen
days later. On appeal, counsel files a brief pursuant to Anders
v. California,
386 U.S. 738 (1967), asserting there are no
meritorious grounds for appeal, but raising the following
issues: (1) whether Terry’s guilty plea was voluntary; (2)
whether Terry should have withdrawn his guilty plea; and (3)
whether Terry’s sentence was reasonable. For the reasons that
follow, we affirm.
First, as noted by counsel, Terry knowingly and
voluntarily pled guilty at his plea hearing, which complied with
Fed. R. Crim. P. 11. Because Terry ultimately did not seek to
withdraw his guilty plea, we review the adequacy of his Rule 11
proceedings for plain error, Fed. R. Crim. P. 52(b); United
States v. Martinez,
277 F.3d 517, 527 (4th Cir. 2002), and we
find none.
Second, because Terry, on the advice of trial counsel,
withdrew his motion to withdraw his guilty plea, any error by
the district court regarding this circumstance would barred by
the invited error doctrine. See United States v. Jackson, 124
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F.3d 607, 617 (4th Cir. 1997) (noting that a court cannot be
asked by counsel to take a step in a case and later be found in
error because it complied with counsel’s request). Moreover,
even if we considered the issue on the merits, there is no fair
and just reason in the record to warrant the withdrawal of
Terry’s plea under Fed. R. Crim. P. 11(d)(2)(B). See United
States v. Moore,
931 F.2d 245, 248 (4th Cir. 1991) (providing
six-factor test).
Finally, we find that Terry’s sentence was reasonable.
We review a sentence for reasonableness, applying “a deferential
abuse-of-discretion standard,” Gall v. United States,
552 U.S.
38, 41 (2007), and this review entails consideration of both the
procedural and substantive reasonableness of the sentence.
Id.
at 51. In determining procedural reasonableness, we consider,
among other things, whether the district court properly
calculated the advisory Sentencing Guidelines range.
Id. Here,
as noted by the district court, Terry faced a mandatory minimum
sentence of five years, and therefore, the Sentencing Guidelines
calculation, as denoted in his presentence report, did not alter
his sentencing range of sixty months of imprisonment. See U.S.
Sentencing Guidelines Manual § 2K2.4(b) (2013) (explaining that
a § 924(c) conviction results in a Guidelines sentence of the
minimum term of imprisonment required by the statute). Further,
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the district court expressly considered some of the 18 U.S.C.
§ 3553(a) (2012) factors when imposing Terry’s sentence.
In accordance with Anders, we have reviewed the record
in this case, including the issues raised in Terry’s pro se
supplemental brief, and have found no meritorious issues for
appeal. We therefore affirm Terry’s conviction and sentence.
This court requires that counsel inform Terry, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Terry 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 Terry. 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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