Filed: Mar. 23, 2017
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4700 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SAMUEL WAYNE HILL, a/k/a Sam Hill, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:14-cr-00206-F-1) Submitted: March 14, 2017 Decided: March 23, 2017 Before MOTZ, AGEE, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Cindy H. Popkin-
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4700 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SAMUEL WAYNE HILL, a/k/a Sam Hill, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:14-cr-00206-F-1) Submitted: March 14, 2017 Decided: March 23, 2017 Before MOTZ, AGEE, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Cindy H. Popkin-B..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4700
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMUEL WAYNE HILL, a/k/a Sam Hill,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:14-cr-00206-F-1)
Submitted: March 14, 2017 Decided: March 23, 2017
Before MOTZ, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Cindy H. Popkin-Bradley, Raleigh, North Carolina, for Appellant.
John Stuart Bruce, United States Attorney, Jennifer P. May-
Parker, First Assistant United States Attorney, Kristine L.
Fritz, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel Wayne Hill pled guilty, pursuant to a written plea
agreement, to conspiracy to manufacture, distribute, and possess
with intent to distribute 500 grams or more of a mixture or
substance containing a detectable amount of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1), 846 (2012). The district
court sentenced Hill to 480 months’ imprisonment, which was
within his Sentencing Guidelines range of 360 months to life.
The court also imposed a lifetime term of supervised release,
which was an upward variance from the Guidelines range of five
years.
In his opening brief on appeal, Hill argued that the
district court committed procedural sentencing error by failing
to explain adequately the 480-month sentence, to address his
arguments for a downward variance, and to explain the reasons
supporting the upward variance in the term of supervised
release. Hill also contended that the court’s comments at the
end of the sentencing hearing demonstrated judicial bias in
violation of due process.
We previously granted the Government’s motion to dismiss
this appeal, in part, based on the waiver-of-appellate-rights
provision included in Hill’s plea agreement, pursuant to which
Hill waived his right to appeal a within-Guidelines sentence.
We ruled that Hill’s acceptance of this waiver was knowing and
2
voluntary and that the first two appellate issues fell within
the scope of the waiver. However, neither Hill’s challenge to
the reasonableness of his upward variant term of supervised
release nor his due process claim is foreclosed by the appellate
waiver. We address each of these claims in turn.
First, pursuant to Rule 28 of the Federal Rules of
Appellate Procedure, the argument section of the brief “must
contain . . . appellant’s contentions and the reasons for them,
with citations to the authorities and parts of the record on
which the appellant relies.” Fed. R. App. P. 28(a)(8)(A).
Issues not raised in a party’s opening brief are waived. United
States v. Bartko, 728 F.3d 327, 335 (4th Cir. 2013).
To be sure, Hill’s opening brief identifies the lifetime
term of supervised release as part of the issue on appeal. 1 But
the argument portion of the brief frames the claimed procedural
sentencing error in terms of the court’s failure to explain
either the 480-month custodial sentence or its reasons for
rejecting the requested downward variance. The closest Hill
comes to asserting an argument relevant to the supervised
1Specifically, the statement of the argument is as follows:
“Whether the district court committed procedural error when it
did not adequately explain why it imposed 480 months as the term
of imprisonment, why it rejected Mr. Samuel Hill’s arguments for
a variance, and why it ordered a term of life for supervised
release.” (Appellant’s Br. (ECF No. 35) at 20).
3
release term is his statement that, “[i]t was also a violation
of the law not to give reasons for rejecting a request for
downward variance and upwardly depart on supervised release and
use key words and phrases to justify the upward departure.”
(Appellant’s Br. at 31). This simply is not enough to raise the
issue sufficiently to entitle Hill to appellate review by this
court. See Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653 n.7
(4th Cir. 2006) (holding that a single sentence in an opening
brief asserting a district court’s alleged error “is
insufficient to raise on appeal any merits-based challenge to
the district court’s ruling”). We thus hold that Hill has
waived appellate review of this particular claim. 2
2Even if it were not waived, Hill’s challenge to the
district court’s explanation for the supervised release term
would not garner Hill any relief. Because Hill did not ask for
any specific term of supervised release and did not object to
the selected term of supervised release, we would review Hill’s
procedural reasonableness challenge only for plain error.
United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). To
establish plain error, Hill must show that (1) the district
court erred, (2) the error is clear or obvious, and (3) the
error affected his substantial rights, meaning that it “affected
the outcome of the district court proceedings.” United States
v. Olano,
507 U.S. 725, 732–34 (1993). Our review of the record
satisfies us that there is no such plain error here.
Prior to sentencing Hill, the district court identified and
addressed itself to Hill’s criminal history, his personal
circumstances (including his ongoing drug addiction and early
exposure to the culture of methamphetamine production), and
Hill’s significant involvement with the long-lasting
methamphetamine production operation that was underlying the
charged conspiracy. The court concluded by observing that the
(Continued)
4
Finally, then, there is Hill’s claim that the district
court violated due process when, at the end of the sentencing
hearing, it made two statements regarding the societal harms
caused by cooking methamphetamine. While the district court’s
strongly worded comments conveyed a disdain for methamphetamine
cooks and the serious, long-lasting, detrimental effects of
methamphetamine on a community, the challenged comments do not
suggest bias amounting to a due process violation. Rather, the
comments reflected the court’s frustration with the
methamphetamine epidemic and its consideration of Hill’s
criminal conduct — specifically, that Hill participated in the
conspiracy for four years, distributed nearly three kilograms of
methamphetamine in his community, cooked in multiple locations
where on one occasion an explosion occurred and resulted in
serious injuries, and remained addicted to the drug himself.
See Liteky v. United States, 510 U.S. 540, 555–56 (1994) (“Not
establishing bias or partiality . . . are expressions of
impatience, dissatisfaction, annoyance, and even anger, that are
within the bounds of what imperfect men and women, even after
imposed sentence, which included both the custodial term of
imprisonment and the term of supervised release, was appropriate
given the extensive and ongoing nature of Hill’s egregious
criminal conduct. We thus readily conclude that there was no
procedural error — let alone plain error — in this regard.
5
having been confirmed as federal judges, sometimes display.”).
Such comments are well within bounds and thus do not offend due
process. See United States v. Bakker, 925 F.2d 728, 740 (4th
Cir. 1991) (“We recognize that a sentencing court can consider
the impact a defendant’s crimes have had on a community and can
vindicate that community’s interests in justice. To a
considerable extent a sentencing judge is the embodiment of
public condemnation and social outrage. As the community’s
spokesperson, a judge can lecture a defendant as a lesson to
that defendant and as a deterrent to others.” (citations
omitted)).
Accordingly, we affirm the remaining portion of Hill’s
criminal judgment. 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
6
