Filed: Aug. 08, 2013
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4653 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERIC GRANT SMITH, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever, III, Chief District Judge. (7:10-cr-00068-D-2) Submitted: July 30, 2013 Decided: August 8, 2013 Before KEENAN, WYNN, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Josiah J. Corrigan,
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4653 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERIC GRANT SMITH, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever, III, Chief District Judge. (7:10-cr-00068-D-2) Submitted: July 30, 2013 Decided: August 8, 2013 Before KEENAN, WYNN, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Josiah J. Corrigan, P..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4653
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC GRANT SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever, III,
Chief District Judge. (7:10-cr-00068-D-2)
Submitted: July 30, 2013 Decided: August 8, 2013
Before KEENAN, WYNN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Josiah J. Corrigan, PERRY, PERRY & PERRY, Kinston, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric Grant Smith pled guilty, pursuant to a plea
agreement, to one count of conspiracy to possess with intent to
distribute more than fifty kilograms of marijuana, in violation
of 21 U.S.C. § 846 (2006). The district court calculated
Smith’s Guidelines sentence under the U.S. Sentencing Guidelines
Manual (“USSG”) (2011) at 240 months’ imprisonment and sentenced
him to 240 months’ imprisonment. On appeal, counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious issues for appeal, but
questioning whether the district court reversibly erred in
accepting Smith’s guilty plea and abused its discretion in
imposing sentence. Smith has filed two pro se supplemental
briefs. The Government declined to file a brief and does not
seek to enforce the appeal waiver in Smith’s plea agreement.
We affirm.
Because Smith did not move in the district court to
withdraw his guilty plea, the adequacy of the Fed. R. Crim. P.
11 hearing is reviewed for plain error only. United States v.
Martinez, 277 F.3d 517, 524–26 (4th Cir. 2002). To demonstrate
plain error, a defendant must show: (1) there was error; (2) the
error was plain; and (3) the error affected his substantial
rights. United States v. Olano,
507 U.S. 725, 732 (1993).
In the guilty plea context, a defendant meets his burden to
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establish that a plain error affected his substantial rights by
showing a reasonable probability that he would not have pled
guilty but for the district court’s Rule 11 omissions.
United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).
Our review of the transcript of the guilty plea
hearing leads us to conclude that the district court
substantially complied with the mandates of Rule 11 in accepting
Smith’s guilty plea and that any omission by court did not
affect Smith’s substantial rights. Critically, the transcript
reveals that the district court ensured that the plea was
supported by an independent basis in fact, and that Smith
entered the plea knowingly and voluntarily with an understanding
of the consequences. United States v. DeFusco, 949 F.2d 114,
116, 120 (4th Cir. 1991). Accordingly, we discern no plain
error in the district court’s acceptance of Smith’s guilty plea.
Turning to Smith’s 240-month sentence, we review it
for reasonableness “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41, 51 (2007).
This review entails appellate consideration of both the
procedural and substantive reasonableness of the sentence.
Id. at 51. In determining procedural reasonableness, we
consider whether the district court properly calculated the
defendant’s advisory Guidelines range, gave the parties an
opportunity to argue for an appropriate sentence, considered the
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18 U.S.C. § 3553(a) (2006) factors, selected a sentence based on
clearly erroneous facts, and sufficiently explained the selected
sentence. Id. at 49–51. If the sentence is free of
“significant procedural error,” we review it for substantive
reasonableness, “tak[ing] into account the totality of the
circumstances.”
Id. at 51. If the sentence is within the
properly calculated Guidelines range, we apply a presumption on
appeal that the sentence is substantively reasonable.
United States v. Mendoza-Mendoza,
597 F.3d 212, 217 (4th Cir.
2010). Such a presumption is rebutted only if the defendant
shows “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
omitted).
Counsel and Smith both question whether the district
court erred in calculating his total offense level under the
Guidelines. We conclude after review of the record that the
district court’s calculation of the drug quantity attributable
to Smith is supported by statements from cooperating informants
in the presentence report and the testimony adduced at
sentencing that the district court credited. We thus discern no
clear error in the court’s calculation of Smith’s base offense
level under USSG § 2D1.1. See United States v. Kellam, 568 F.3d
125, 147 (4th Cir. 2009) (stating the standard of review, noting
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that the district court’s drug quantity finding must be
supported by a preponderance of the evidence, and concluding
that testimony received at trial and sentencing supported the
court’s finding); United States v. Randall, 171 F.3d 195, 210-11
(4th Cir. 1999) (explaining that a defendant bears the burden of
establishing that information in the presentence report the
district court relied on in calculating the relevant drug
quantity is incorrect).
Smith also claims that his plea agreement was breached
by the district court’s drug quantity calculation. Because
Smith did not raise this argument following the district court’s
calculation of the drug quantity attributable to him, we review
this claim for plain error. Puckett v. United States, 556 U.S.
129, 134-36 (2009). We conclude after review of the record that
Smith fails to establish plain error by the district court. The
parties’ agreement to recommend to the district court that a
certain quantity of marijuana be used in the determination of
Smith’s base offense level under the Guidelines was not binding
on the court, and Smith does not suggest that the Government
failed in its obligation to recommend at sentencing that the
court use the agreed-upon quantity in calculating his base
offense level. Smith thus fails to establish a plain breach of
the plea agreement. See United States v. McQueen,
108 F.3d 64,
66 (4th Cir. 1997) (holding that, to prevail on a claim of
5
breach of the plea agreement under a plain error standard, the
defendant must show not only a plain breach of the plea
agreement but also that he was prejudiced by the error).
Next, counsel and Smith question whether the district
court erred in enhancing his offense level two levels under USSG
§ 2D1.1(b)(1). Under USSG § 2D1.1(b)(1), a two-level increase
in a defendant’s offense level is warranted “[i]f a dangerous
weapon (including a firearm) was possessed.” The enhancement is
proper when the weapon at issue “was possessed in connection
with drug activity that was part of the same course of conduct
or common scheme as the offense of conviction,” United States v.
Manigan, 592 F.3d 621, 628-29 (4th Cir. 2010) (internal
quotation marks omitted), even in the absence of “proof of
precisely concurrent acts, for example, gun in hand while in the
act of storing drugs, drugs in hand while in the act of
retrieving a gun.” United States v. Harris,
128 F.3d 850, 852
(4th Cir. 1997) (internal quotation marks omitted).
The defendant bears the burden to show that a connection between
his possession of a firearm and his narcotics offense is
“clearly improbable.”
Id. at 852-53.
We conclude after review of the record that Smith has
not met this burden. The district court’s application of the
two-level enhancement is supported by the testimony received at
sentencing and statements in the presentence report connecting
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Smith’s possession of the firearm to a drug transaction
occurring in the course of the conspiracy, and Smith has not
pointed to evidence suggesting that the connection between the
firearm and the conspiracy offense was “clearly improbable.”
Counsel and Smith next question whether the district
court erred in enhancing his offense level six levels under USSG
§ 3A1.2(c)(1). Pursuant to USSG § 3A1.2(c)(1), a defendant
qualifies for a six-level increase to his offense level if,
“knowing or having reasonable cause to believe that a person was
a law enforcement officer,” the defendant “or a person for whose
conduct the defendant is otherwise accountable” assaults the
officer “during the course of the offense or immediate flight
therefrom” in a manner creating “a substantial risk of serious
bodily injury.” Smith does not challenge the district court’s
finding that a co-conspirator assaulted an officer and engaged
in conduct creating a substantial risk of serious bodily injury
to the police officer attempting to stop a vehicle transporting
funds slated by the conspiracy for the purchase of marijuana,
and, after review of the record, we conclude that the district
court did not clearly err in finding this conduct was reasonably
foreseeable to Smith. See United States v. Harrison, 272 F.3d
220, 223 (4th Cir. 2001) (stating standard of review and noting
that “a defendant who undertakes a joint criminal activity is
accountable, for sentencing purposes, for the reasonably
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foreseeable conduct of the others involved in furtherance of the
jointly undertaken criminal activity”).
Counsel and Smith also question whether the district
court erred in enhancing his offense level four levels under
USSG § 3B1.1(a). Section 3B1.1(a) of the Guidelines directs a
district court to enhance a defendant’s offense level four
levels “[i]f the defendant was an organizer or leader of a
criminal activity that involved five or more participants or was
otherwise extensive.” In assessing whether a defendant played
an aggravating role in the offense of conviction, “the key
inquiry is whether the defendant’s role was that of an organizer
or leader of people, as opposed to that of a manager over the
property, assets, or activities of a criminal organization.”
United States v. Llamas, 599 F.3d 381, 390 (4th Cir. 2010)
(internal quotation marks omitted).
The evidence adduced at sentencing supports the
conclusions that the conspiracy involved five or more
participants and that Smith exercised an organizational role in
it by arranging for the conspiracy to purchase drugs from a
source, directing members’ purchases from that source, paying
for expenses of purchasing trips, and controlling the flow of
currency from the conspiracy to the source. We thus discern no
clear error in the district court’s finding that Smith was an
organizer or leader of the conspiracy’s participants, rendering
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the four-level enhancement under USSG § 3B1.1(a) appropriate.
See United States v. Jones, 356 F.3d 529, 538 (4th Cir. 2004)
(affirming application of four-level enhancement for leadership
role where defendant recruited dealers, controlled allocation of
drugs to dealers, determined how profits were divided, and
handled the logistics and arrangements for the transactions);
United States v. Perkins,
108 F.3d 512, 518 (4th Cir. 1997)
(affirming application of enhancement where defendant “directed
the activities of other members of the drug ring and facilitated
the criminal enterprise by renting apartments, acquiring pagers,
hiring a lawyer for a codefendant, and paying for the bond of
another codefendant”).
In addition to correctly calculating Smith’s total
offense level, the district court also correctly calculated his
criminal history category, correctly calculated his advisory
Guidelines sentence, and heard argument from counsel and
allocution from Smith. The court explained that the Guidelines
sentence of 240 months’ imprisonment was warranted in light of
the nature and circumstances of Smith’s offense, his history and
characteristics, and the need for the sentence to reflect the
seriousness of his offense, to promote respect for the law, to
afford adequate deterrence, and to protect the public. Neither
counsel nor Smith offers any grounds to rebut the presumption on
appeal that his within-Guidelines sentence is substantively
9
reasonable. Accordingly, we conclude that the district court
did not abuse its discretion in sentencing Smith.
Finally, in accordance with Anders, we have reviewed
the remainder of the record in this case and have found no
meritorious issues for appeal. We therefore affirm the district
court’s judgment. This Court requires that counsel inform
Smith, in writing, of the right to petition the Supreme Court of
the United States for further review. If Smith 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 Smith.
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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