Filed: Jul. 07, 2009
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5154 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LAVON RICHARD CALDWELL, a/k/a Jamal Garrison, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:07-cr-00293-RDB-2) Submitted: June 10, 2009 Decided: July 7, 2009 Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Gary E. Proc
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5154 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LAVON RICHARD CALDWELL, a/k/a Jamal Garrison, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:07-cr-00293-RDB-2) Submitted: June 10, 2009 Decided: July 7, 2009 Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Gary E. Proct..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5154
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LAVON RICHARD CALDWELL, a/k/a Jamal Garrison,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:07-cr-00293-RDB-2)
Submitted: June 10, 2009 Decided: July 7, 2009
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gary E. Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC, Baltimore,
Maryland, for Appellant. Paul E. Budlow, OFFICE OF THE UNITED
STATES ATTORNEY, Tonya Kelly Kowitz, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lavon Richard Caldwell appeals from the sixty-one
month sentence imposed following his guilty plea, pursuant to a
written plea agreement, to one count of conspiracy to commit
bank fraud, in violation of 18 U.S.C. § 1349 (2006) (Count 1),
and one count of aggravated identity theft, in violation of 18
U.S.C. §§ 2, 1028A(a)(1) (2006) (Count 3). Caldwell’s counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting that there are no meritorious grounds for
appeal, but questioning the validity of Caldwell’s guilty plea
and whether Caldwell’s sentence is reasonable. Caldwell filed a
pro se supplemental brief, alleging that his guilty plea is
invalid because of trial counsel’s ineffective assistance and
that his sentence is unreasonable because the amount of total
loss and his criminal history points were incorrectly
calculated. The Government has not filed a brief. Finding no
error, we affirm.
I.
Counsel first questions the issue of whether
Caldwell’s guilty plea was invalid, but concludes that it was
knowing and voluntary. Prior to accepting a defendant’s guilty
plea, Federal Rule of Criminal Procedure 11(b)(1) (“Rule 11”)
requires the district court to address the defendant in open
2
court and ensure he understands the following: the nature of the
charge against him; any mandatory minimum sentence; the maximum
possible sentence, including imprisonment, fine, and term of
supervised release; the mandatory special assessment; the
applicability of the advisory Guidelines; his right to an
attorney at all stages of the proceedings; his right to plead
not guilty; his right to a jury trial with the assistance of
counsel; his right to confront and cross-examine witnesses; his
right to testify on his own behalf and his right against self-
incrimination; the court’s authority to order restitution; any
applicable forfeiture; and the government’s right to use any of
his statements under oath in a perjury prosecution. Fed. R.
Crim. P. 11(b)(1). The district court must also inform the
defendant that he may not withdraw his guilty plea once the
court accepts it and imposes a sentence. Fed. R. Crim. P.
11(e). Additionally, the district court must “determine that
there is a factual basis for the plea.” Fed. R. Crim. P.
11(b)(3). Finally, the district court must ensure the
defendant’s plea was voluntary and did not come about as a
result of force, threats, or promises. Fed. R. Crim. P.
11(b)(2).
Because Caldwell did not move to withdraw his guilty
plea in the district court or raise any objections during the
Rule 11 colloquy, the plea colloquy is reviewed for plain error.
3
United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002);
United States v. General,
278 F.3d 389, 393 (4th Cir. 2002). To
demonstrate plain error, Caldwell must show that an “error
occurred, that the error was plain, and that the error affected
his substantial rights.” General, 278 F.3d at 393 (internal
quotation marks and citation omitted). An error is plain if it
is “clear” or “obvious.” United States v. Olano,
507 U.S. 725,
734 (1993). A defendant’s substantial rights are affected if
the Court determines that the error “influenced the defendant’s
decision to plead guilty and impaired his ability to evaluate
with eyes open the direct attendant risks of accepting criminal
responsibility.” United States v. Goins,
51 F.3d 400, 402-03
(4th Cir. 1995) (internal quotation marks and citation omitted);
see also Martinez, 277 F.3d at 532 (holding that a defendant
must demonstrate that he would not have pled guilty but for the
error).
Counsel makes an argument that Caldwell was
incorrectly informed of his rights because the district court
stated that the two year sentence for Count 3 ran concurrent to
the sentence for Count 1. However, it is clear the district
court misspoke, as the judge immediately explained that “you
will have two years in addition to whatever the sentence is for
Count 1.” Moreover, the written plea agreement Caldwell signed
stated that the sentence for Count 3 would run consecutive to
4
any sentence for Count 1. Counsel does not allege any further
errors in the district court’s Rule 11 colloquy and our review
of the record reveals that the district court substantially
complied with the mandates of Rule 11 in accepting Caldwell’s
guilty plea.
II.
Counsel next challenges the reasonableness of
Caldwell’s sentence. * Consistent with United States v. Booker,
543 U.S. 220 (2005), the district court is required to follow a
multi-step process at sentencing. First, it must calculate the
proper sentencing range prescribed by the Guidelines. Gall v.
United States,
552 U.S. 32, ___,
128 S. Ct. 586, 596 (2007);
see also United States v. Abu Ali,
528 F.3d 210, 260 (4th Cir.
2008). It must then consider that range in light of the
parties’ arguments regarding the appropriate sentence and the
factors set out in 18 U.S.C. § 3553(a) (2006), before imposing
its sentence. Gall, 552 U.S. at ___, 128 S. Ct. at 596;
see also Abu Ali, 528 F.3d at 260.
*
In the plea agreement, Caldwell waived his right to
appeal a sentence within the advisory Guidelines range for an
adjusted offense level of 20 or lower on Count 1 plus two years’
imprisonment on Count 3. However, the Government failed to
assert the waiver as a bar to the appeal. Therefore, we may
undertake an Anders review. United States v. Poindexter, 492
F.3d 263, 271 (4th Cir. 2007).
5
We review the district court’s sentence for abuse of
discretion. Gall, 552 U.S. at ___, 128 S. Ct. at 591. First,
we must ensure the district court did not commit any
“significant procedural error,” such as failing to consider the
18 U.S.C. § 3553(a) factors or failing to adequately explain the
sentence. Id. at 597. The district court is not required to
“robotically tick through § 3553(a)’s every subsection.” United
States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). However,
the district court must “place on the record an individualized
assessment based on the particular facts of the case before it.
This individualized assessment need not be elaborate or lengthy,
but it must provide a rationale tailored to the particular case
at hand and adequate to permit meaningful appellate review.”
United States v. Carter,
564 F.3d 325, 330 (4th Cir. 2009)
(internal quotation marks, footnote, and citations omitted).
This is true even when the district court sentences a defendant
within the applicable Guidelines range. Id.
Once we have determined there is no procedural error,
we must consider the substantive reasonableness of the sentence,
taking into account the totality of the circumstances. Gall,
552 U.S. at ___, 128 S. Ct. at 597. If the sentence imposed is
within the appropriate Guidelines range, on appeal it is
presumptively reasonable. United States v. Go, 517 F.3d 216,
218 (4th Cir. 2008). The presumption may be rebutted by a
6
showing “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 and
citation omitted).
Our review of the record reveals that the district
court properly calculated Caldwell’s advisory Guidelines range
of thirty-seven to forty-six months on Count 1. Additionally,
the district court provided a lengthy explanation of the
sentence, noting that the nature and circumstances of the
offense were “egregious” and that there were numerous victims
and a large amount of money involved. The district court also
viewed Caldwell as “probably the second most culpable person in
this entire ring,” noting that Caldwell did not appear to
recognize his level of wrongdoing. The record is also clear
that the district court considered the arguments of both
attorneys and Caldwell’s allocution prior to sentencing
Caldwell. Therefore, we find that the district court performed
an adequate individualized assessment and committed no
procedural error.
Furthermore, Caldwell’s within-Guidelines sentence is
presumptively reasonable on appeal and Caldwell has not rebutted
that presumption. Therefore, we find that the district court
committed no substantive error in sentencing Caldwell.
Accordingly, the district court did not abuse its discretion in
7
sentencing Caldwell to thirty-seven months’ imprisonment on
Count 1 and a consecutive term of twenty-four months’
imprisonment on Count 3.
III.
In his pro se supplemental brief, Caldwell alleges
that his guilty plea is invalid because of the ineffective
assistance of counsel. A defendant may raise a claim of
ineffective assistance of counsel “on direct appeal if and only
if it conclusively appears from the record that his counsel did
not provide effective assistance.” United States v. Martinez,
136 F.3d 972, 979 (4th Cir. 1998). To prove ineffective
assistance, the defendant must show two things: (1) “that
counsel’s representation fell below an objective standard of
reasonableness” and (2) “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v.
Washington,
466 U.S. 668, 688, 694 (1984). In the context of a
guilty plea, “the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”
Hill v. Lockhart,
474 U.S. 52, 59 (1985). Our review of the
record reveals no conclusive evidence that Caldwell’s counsel
did not provide effective assistance. We have examined the
8
remainder of Caldwell’s pro se claims and find them to lack
merit.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Caldwell’s conviction and sentence. This
court requires that counsel inform Caldwell, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Caldwell requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Caldwell. We dispense with oral argument because
the facts and legal conclusions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
9
