Filed: Mar. 06, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4527 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RODNEY JARVIS EVERETTE, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:13-cr-00036-CCE-1) Submitted: January 27, 2014 Decided: March 6, 2014 Before WYNN, DIAZ, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Jenifer Wicks, LAW
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4527 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RODNEY JARVIS EVERETTE, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:13-cr-00036-CCE-1) Submitted: January 27, 2014 Decided: March 6, 2014 Before WYNN, DIAZ, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Jenifer Wicks, LAW O..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4527
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RODNEY JARVIS EVERETTE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00036-CCE-1)
Submitted: January 27, 2014 Decided: March 6, 2014
Before WYNN, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jenifer Wicks, LAW OFFICES OF JENIFER WICKS, Washington, D.C.,
for Appellant. Clifton Thomas Barrett, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodney Jarvis Everette pled guilty, pursuant to a plea
agreement, to distributing 34.84 grams of a mixture and
substance containing a detectable amount of cocaine base, in
violation of 21 U.S.C. § 841(a)(1), and possessing a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c). The district court sentenced Everette to the
mandatory minimum sentence applicable to each offense--60
months--to run consecutively, for a total sentence of 120
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 grounds for appeal but questioning
whether: (1) the district court complied with Federal Rule of
Criminal Procedure 11 in accepting Everette’s guilty plea; (2)
trial counsel rendered ineffective assistance; and (3) the
district court erred by sentencing Everette to the mandatory
minimum sentence. Everette has filed a pro se supplemental
brief, in which he raises several challenges to his sentence.
We affirm.
I.
Counsel first questions whether the district court
complied with Rule 11 in accepting Everette’s guilty plea.
Because Everette withdrew his motion to withdraw his guilty
plea, we review any errors at the Rule 11 hearing under the
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plain error standard. See United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002) (holding “that plain error analysis is
the proper standard for review of forfeited error in the Rule 11
context”). To establish plain error on appeal, Everette must
show: “(1) there is an error, (2) the error is plain, and (3)
the error affect[s] substantial rights.” Henderson v. United
States,
133 S. Ct. 1121, 1126 (2013) (internal quotation marks
omitted). In the guilty plea context, a defendant meets his
burden by showing a reasonable probability that he would not
have pled guilty but for the Rule 11 omission. United States v.
Massenburg,
564 F.3d 337, 343 (4th Cir. 2009).
After reviewing the transcript of Everette’s guilty
plea hearing, we conclude that the district court substantially
complied with Rule 11 in accepting Everette’s plea, and it
ensured that Everette’s plea was knowing, voluntary, and
supported by a sufficient factual basis. Although the court
failed to inform Everette of the maximum sentence he faced for
the firearm offense, as required by Rule 11(b)(1)(H), that
omission did not affect his substantial rights. See Massenburg,
564 F.3d at 343 (declining to notice plain error in a case in
which the “[defendant] never clearly and unmistakably asserted
that had he been correctly informed of the sentence he faced, he
would, in fact, have pled not guilty and gone to trial”
(internal quotation marks omitted)).
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II.
Counsel next questions whether Everette’s trial
counsel rendered ineffective assistance. Claims of ineffective
assistance of counsel “are generally not cognizable on direct
appeal . . . unless it conclusively appears from the record that
defense counsel did not provide effective representation.”
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008)
(internal quotation marks omitted). Rather, to allow for
adequate development of the record, ineffective assistance
claims should generally be raised in a 28 U.S.C. § 2255 motion.
See United States v. Baptiste,
596 F.3d 214, 216 n.1 (4th Cir.
2010). Because we conclude that the record does not plainly
show that Everette’s trial counsel rendered ineffective
assistance, we will not consider his claim at this juncture.
III.
Next, both counsel and Everette question the
reasonableness of Everette’s sentence. We review criminal
sentences for reasonableness “under a deferential abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 41
(2007). A sentence is procedurally unreasonable if the district
court fails to properly calculate the defendant’s advisory
Guidelines range or does not consider the 18 U.S.C. § 3553(a)
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factors. See id. at 49-51. If we find no significant
procedural error, we consider the substantive reasonableness of
the sentence “tak[ing] into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range.”
Id. at 51.
A.
Everette argues that the district court violated
Alleyne v. United States, 133 S. Ct. 2151 (2013), which held
“that any fact that increases the mandatory minimum is an
‘element’ that must be submitted to the jury” and charged in the
indictment, see
id. at 2155. Specifically, Everette argues that
the district court erred by finding that he was guilty of the
firearm offense by a preponderance of the evidence.
We conclude that the district court did not violate
Alleyne, as it did not undertake to find any facts not charged
in the indictment that would increase the mandatory minimum
sentence. Rather, Everette was sentenced for the crime to which
he pled guilty--possession of a firearm in furtherance of a drug
trafficking crime--and that offense was supported by an
independent factual basis.
B.
Everette also argues that the district court
incorrectly calculated his advisory Guidelines range on the
distribution of cocaine base charge, specifically taking issue
5
with the court’s application of the mandatory minimum sentence
to his advisory Guidelines range. Because Everette did not
object to the Guidelines calculation before the district court,
our review is for plain error. See United States v. Lynn, 592
F.3d 572, 577-78 (4th Cir. 2010). We conclude that the district
court did not err--plainly or otherwise--in calculating
Everette’s advisory Guidelines range. See U.S. Sentencing
Guidelines Manual § 5G1.1(c)(2) (2012) (providing that “the
sentence may be imposed at any point within the applicable
guideline range, provided that the sentence . . . is not less
than any statutorily required minimum sentence”).
C.
Finally, Everette argues that the district court
blindly imposed the mandatory minimum sentence without
considering the § 3553(a) factors. Because Everette did “not
argue for a sentence different than the within-Guidelines
sentence [he] ultimately received,” we review the adequacy of
the district court’s consideration of the § 3553(a) factors for
plain error. Lynn, 592 F.3d at 580.
After reviewing the sentencing transcript, we conclude that
the district court adequately considered the § 3553(a) factors,
finding that the mandatory minimum sentence was sufficient to
punish Everette in light of his limited prior criminal record.
See also United States v. Farrior, 535 F.3d 210, 224 (4th Cir.
6
2008) (“A statutorily required sentence, which is what [the
defendant] received, is per se reasonable.”).
IV.
In accordance with Anders, we have reviewed the record
and have found no meritorious grounds for appeal. We therefore
affirm the district court’s judgment. This court requires that
counsel inform Everette, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Everette 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
Everette.
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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