Filed: Sep. 08, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4917 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DARREN NELSON HARRISON, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:13-cr-00034-RJC-1) Submitted: August 29, 2014 Decided: September 8, 2014 Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per c
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4917 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DARREN NELSON HARRISON, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:13-cr-00034-RJC-1) Submitted: August 29, 2014 Decided: September 8, 2014 Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per cu..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4917
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARREN NELSON HARRISON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:13-cr-00034-RJC-1)
Submitted: August 29, 2014 Decided: September 8, 2014
Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Hannah Valdez Garst, LAW OFFICES OF HANNAH GARST, Chicago,
Illinois, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darren Nelson Harrison appeals his conviction and
ninety-month prison sentence after pleading guilty to using,
carrying, and possessing firearms during and in relation to, and
in furtherance of, a drug trafficking crime, in violation of 18
U.S.C. § 924(c) (2012). In the plea agreement, the parties
agreed that the Government would recommend a prison sentence of
sixty months. Harrison’s attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting that there
are no meritorious grounds for appeal but raising the issues of
whether the district court committed plain error in accepting
Harrison’s guilty plea, and whether the district court abused
its discretion in sentencing him above the recommended sentence.
Harrison has filed a pro se supplemental brief arguing that his
guilty plea was not knowing and voluntary, and the district
court committed plain error in accepting the plea. We affirm.
“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.
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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)).
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).
“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
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affects substantial rights may be considered even though it was
not brought to the court’s attention.” Fed. R. Crim. P. 52(b).
Because Harrison’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); United States v.
Martinez,
277 F.3d 517, 525 (4th Cir. 2002). It is thus
Harrison’s burden to show (1) error; (2) that was plain; (3)
affecting his 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 that his substantial rights were
affected, he “must show a reasonable probability that, but for
the error, he would not have entered the plea.” United States
v. Dominguez Benitez,
542 U.S. 74, 83 (2004).
We have reviewed the record and conclude that Harrison
fails to make this showing. On appeal, he contends that he did
not knowingly and voluntarily enter his plea, and the district
court committed plain error in accepting it, because he did not
understand that the court could sentence him higher than the
recommended sentence. However, the record makes clear that he
was properly informed at the Rule 11 hearing that the district
court could sentence him up to the statutory maximum of life in
prison, and that if the court did not accept the Government’s
recommendation, he would still be bound by the plea and have no
right to withdraw it. Harrison also contends that the district
4
court erred in accepting his plea because the Government could
not legally charge him with an offense under 18 U.S.C. § 924(c)
without also charging him with the predicate offense. We find
this argument without merit. See United States v. Hopkins, 310
F.3d 145, 152-53 (4th Cir. 2002). Harrison was properly charged
with possessing firearms in furtherance of a drug trafficking
crime, that is, possession with intent to distribute cocaine
base, and the district court did not err in concluding that
there was an independent factual basis to support the plea.
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)). First, we consider whether the district
court committed any significant procedural error, such as
improperly calculating the Guidelines range, failing to consider
the sentencing factors under 18 U.S.C. § 3553(a) (2012), or
failing to adequately explain the sentence. 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 its substantive reasonableness, taking into
account the totality of the circumstances and giving due
deference to the district court’s decision.
Gall, 552 U.S. at
51. “[A] sentence that deviates from the Guidelines is reviewed
under the same deferential abuse-of-discretion standard as a
5
sentence imposed within the applicable guidelines range.”
United States v. Rivera-Santana, 668 F.3d 95, 106 (4th Cir.
2012) (citation and internal quotations omitted).
In sentencing, the district court must first correctly
calculate the defendant’s sentencing range under the Sentencing
Guidelines. 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 the 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). While a court must consider the statutory
factors and explain its sentence, it need not explicitly
reference § 3553(a) or discuss every factor on the record.
United States v. Johnson,
445 F.3d 339, 345 (4th Cir. 2006).
We have reviewed the record and conclude that
Harrison’s sentence is both procedurally and substantively
reasonable, and the district court did not abuse its discretion
6
in sentencing him. The district court properly calculated his
sentence under the advisory Guidelines and reasonably determined
a sentence above the Guidelines and the parties’ recommendation
was appropriate based on the court’s thorough, individualized
assessment of Harrison’s case and the § 3553(a) factors.
In accordance with Anders, we have reviewed the entire
record and have found no meritorious issues for appeal.
Accordingly, we affirm the district court’s judgment. This
court requires that counsel inform his or her client, in
writing, of his or her right to petition the Supreme Court of
the United States for further review. If the client 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 the client.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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