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United States v. Demario Terry, 14-4258 (2014)

Court: Court of Appeals for the Fourth Circuit Number: 14-4258 Visitors: 17
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Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4258 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DEMARIO JEMEL TERRY, Defendant -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 Affirmed by unpublished p
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                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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whether Terry should have withdrawn his guilty plea; and (3)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

                                          
2 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




                                         4

Source:  CourtListener

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