United States v. Sikeo Butler , 629 F. App'x 554 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4201
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SIKEO HARVELL BUTLER, a/k/a Keo,
Defendant - Appellant.
No. 15-4205
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM ONEAL WINFREY, a/k/a Joe,
Defendant - Appellant.
No. 15-4215
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRANCE EDWARD STEWART, a/k/a Cheddar,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:14-cr-00400-HMH-6; 6:14-cr-00400-HMH-1;
6:14-cr-00400-HMH-4)
Submitted: November 30, 2015 Decided: December 4, 2015
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
No. 15-4201 affirmed; No. 15-4205 affirmed in part and dismissed
in part; No. 15-4215 affirmed by unpublished per curiam opinion.
T. Kirk Truslow, North Myrtle Beach, South Carolina; Derek J.
Enderlin, ROSS & ENDERLIN, PA, Greenville, South Carolina; Jill
E.M. HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston, South
Carolina, for Appellants. William N. Nettles, United States
Attorney, William J. Watkins, Jr., Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Sikeo Harvell Butler, William Oneal Winfrey, and Terrance
Edward Stewart appeal their convictions for conspiracy to
possess with intent to distribute heroin and methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2012).
Winfrey also challenges his conviction of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
(2012). The Appellants raise various challenges to their Fed.
R. Crim. P. 11 plea colloquies and sentences. For the reasons
that follow, we dismiss in part Winfrey’s appeal as it relates
to his sentence, and affirm the remainder of the district
court’s judgments as to all three Appellants.
I.
Butler asserts that his Fed. R. Crim. P. 11 plea colloquy
was inadequate because the district court did not fully explain
the offense of conspiracy and did not ensure that a sufficient
factual basis supported his guilty plea. Prior to accepting a
guilty plea, a court must conduct a plea colloquy in which it
informs the defendant of, and determines that the defendant
understands, the nature of the charge to which he is pleading
guilty, in addition to other information. Fed. R. Crim. P.
11(b)(1); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir.
1991). The district court also must ensure that the defendant’s
plea is voluntary, supported by a sufficient factual basis, and
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not the result of force, threats, or promises not contained in
the plea agreement. Fed. R. Crim. P. 11(b)(2)-(3); DeFusco, 949
F.2d at 119-20.
Because Butler did not move to withdraw his guilty plea in
the district court or otherwise preserve any allegation of Rule
11 error, the plea colloquy is reviewed for plain error. United
States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014). To
establish plain error, Butler must show: (1) there was error;
(2) the error was plain; and (3) the error affected his
substantial rights. Henderson v. United States, 133 S. Ct.
1121, 1126-27 (2013). In the guilty plea context, a defendant
establishes the third factor by showing a reasonable probability
that he would not have pled guilty but for the Rule 11 error.
United States v. Davila, 133 S. Ct. 2139, 2147 (2013).
Butler confirmed during the Rule 11 colloquy that he
understood and was pleading guilty to “the conspiracy as
described in the indictment,” which adequately described the
offense. Additionally, Butler’s written plea agreement stated
that he was pleading guilty to count one of the indictment, and
during the colloquy, he confirmed that he understood the plea
agreement and had reviewed it with his attorney. Thus, he
cannot show that the court plainly erred in its Rule 11
colloquy.
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Butler also contends that his plea was not supported by a
sufficient factual basis because he denied being a member of the
“Detroit Boys” and instead claimed that he only supplied drugs
to one codefendant. Thus, he argues that he cannot be guilty of
conspiracy. This argument is without merit. Although Butler
asserts he only sold to one codefendant, he acknowledged that he
provided that codefendant with over a kilogram of heroin. A
defendant be part of a conspiracy without knowing all other
members of the conspiracy. United States v. Green, 599 F.3d
360, 367 (4th Cir. 2010). Additionally, a defendant’s sale of a
large quantity of drugs “supports an inference or presumption
that appellant knew that he was a part of a venture which
extended beyond his individual participation.” United States v.
Brown, 856 F.2d 710, 712 (4th Cir. 1988) (per curiam) (internal
quotation marks and brackets omitted). Thus, Butler also fails
to establish plain error regarding his factual basis argument.
Finally, we note that, even if he could establish plain
error, Butler has not shown that his substantial rights were
affected, since he does not actually contend that, but for these
alleged errors at the Rule 11 hearing, he would not have pled
guilty.
II.
Winfrey argues that his counsel had a conflict of interest
because he represented both Winfrey and his brother, Laron, at
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their Rule 11 hearing. Unless an attorney’s ineffectiveness
conclusively appears on the face of the record, ineffective
assistance claims are not generally addressed on direct appeal.
United States v. Galloway, 749 F.3d 238, 241 (4th Cir.), cert.
denied, 135 S. Ct. 215 (2015). Instead, such claims should be
raised, if at all, in a 28 U.S.C. § 2255 (2012) motion, in order
to permit sufficient development of the record. United States
v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
“[W]henever a trial court improperly requires joint
representation over timely objection reversal is automatic.”
Holloway v. Arkansas, 435 U.S. 475, 488 (1978). Absent an
objection or the presence of “special circumstances” indicating
that the court should know of a conflict of interest, “the court
need not initiate an inquiry” into the propriety of joint
representation. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).
In order to succeed on an ineffective assistance claim arising
from joint representation where no objections or special
circumstances existed, the defendant must show “that his counsel
labored (1) under an actual conflict of interest that
(2) adversely affected the representation.” Jones v. Polk, 401
F.3d 257, 267 (4th Cir. 2005). “A defendant has established an
adverse effect if he proves that his attorney took action on
behalf of one client that was necessarily adverse to the defense
of another or failed to take action on behalf of one because it
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would adversely affect another.” Mickens v. Taylor, 240 F.3d
348, 360 (4th Cir. 2001), aff’d, 535 U.S. 162 (2002).
Winfrey did not object to the joint representation and his
contention that his dispute of the Government’s factual
recitations was equivalent to an objection or special
circumstance is legally unsupported. Further, despite Winfrey’s
contention that Laron’s interests conflicted with his own, the
record reveals that Laron supported Winfrey’s version of events
rather than opposing it.
As part of his conflict of interest claim, Winfrey
fleetingly argues that the district court’s colloquy did not
comply with Fed. R. Crim. P. 11. Winfrey’s Rule 11 claim is
reviewed for plain error because he did not seek to withdraw his
plea. Sanya, 774 F.3d at 815. We reject Winfrey’s argument
that the court failed to adequately explain the crime of
conspiracy. As to Winfrey’s challenge to the plea’s factual
basis, Winfrey admitted, on the record, facts sufficient to
establish conspiracy. Thus, we also conclude this argument is
without merit.
Finally, Winfrey contends that his sentence was
procedurally and substantively unreasonable because the court
upwardly varied by 72 months after finding that Winfrey’s three
children each tested positive for drugs. The Government invokes
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Winfrey’s appellate waiver, but Winfrey contends the waiver is
invalid for various reasons.
“A defendant may waive the right to appeal his conviction
and sentence so long as the waiver is knowing and voluntary.”
United States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013)
(internal quotation marks omitted). We reject Winfrey’s
arguments and conclude that the waiver is valid and that his
claims fall within its scope. Thus, we dismiss Winfrey’s appeal
as it pertains to his sentence.
III.
Stewart contends that his sentence is procedurally and
substantively unreasonable. We review a sentence for
reasonableness, applying “a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). In
determining whether a sentence is procedurally reasonable, we
consider whether the district court properly calculated the
Sentencing Guidelines range, gave the parties an opportunity to
argue for an appropriate sentence, considered the 18 U.S.C.
§ 3553(a) (2012) factors, and sufficiently explained the
selected sentence. Id. at 49-51.
“Regardless of whether the district court imposes an above,
below, or within-Guidelines sentence, it must place on the
record an individualized assessment based on the particular
facts of the case before it.” United States v. Carter, 564 F.3d
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325, 330 (4th Cir. 2009) (internal quotation marks omitted).
While the “individualized assessment need not be elaborate or
lengthy, . . . it must provide a rationale tailored to the
particular case at hand and adequate to permit meaningful
appellate review.” Id. (internal quotation marks omitted).
The reasons articulated for a given sentence need not be
“couched in the precise language of § 3553(a),” so long as the
“reasons can be matched to a factor appropriate for
consideration . . . and [are] clearly tied [to the defendant’s]
particular situation.” United States v. Moulden, 478 F.3d 652,
658 (4th Cir. 2007). Moreover, the sentencing court “need not
robotically tick through § 3553(a)’s every subsection”; it only
must provide “some indication” that it considered the § 3553(a)
factors with respect to the defendant before it and also
considered any nonfrivolous arguments raised by the parties at
sentencing. United States v. Montes-Pineda, 445 F.3d 375, 380
(4th Cir. 2006).
If we find no procedural error, we examine the substantive
reasonableness of a sentence under “the totality of the
circumstances.” Gall, 552 U.S. at 51. When the district court
imposes a sentence above the applicable Guidelines range, we
consider “whether the sentencing court acted reasonably both
with respect to its decision to impose such a sentence and with
respect to the extent of the divergence from the sentencing
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range.” United States v. Washington, 743 F.3d 938, 944 (4th
Cir. 2014) (internal quotation marks omitted). “A major
departure from the advisory range should be supported by a more
significant justification than a minor one.” United States v.
Morace, 594 F.3d 340, 346 (4th Cir. 2010) (internal quotation
marks omitted). We give due deference to the sentencing court’s
decision because that court “has flexibility in fashioning a
sentence outside of the Guidelines range,” and need only “set
forth enough to satisfy the appellate court that it has
considered the parties’ arguments and has a reasoned basis” for
its decision. United States v. Diosdado-Star, 630 F.3d 359, 364
(4th Cir. 2011) (alteration omitted).
Because we conclude that the district court issued a
variance rather than a departure, Stewart was not entitled to
receive advance notice under Fed. R. Crim. P. 32(h), so his
challenge in this regard is meritless. We also reject Stewart’s
contention that the court failed to state the reason for its
upward variance in open court. Although the court did not
explicitly refer to the subsections of § 3553(a) in explaining
its sentence, the court nonetheless stated reasons consistent
with the statutory factors. The reasoning articulated at
sentencing “can be matched to [each of these § 3553(a)]
factor[s] appropriate for consideration.” Moulden, 478 F.3d at
658.
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Stewart also claims that the court’s failure to address
whether his federal sentence would run concurrent with his
potential state sentence for his post-guilty plea criminal
conduct was procedurally and substantively unreasonable.
Because Stewart failed to raise the question of concurrent
sentencing in the district court, we review for plain error.
United States v. Obey, 790 F.3d 545, 549-50 (4th Cir. 2015).
Stewart fails to cite any authority for the proposition that the
district court must state whether it intends that the sentences
run consecutively or concurrently. Additionally, as the
Government notes, the statutory default is that “[m]ultiple
terms of imprisonment imposed at different times run
consecutively unless the court orders that the terms are to run
concurrently.” 18 U.S.C. § 3584(a) (2012). Accordingly, we
conclude that Stewart has not demonstrated that his sentence is
unreasonable on this basis.
Finally, Stewart contends that his sentence is
substantively unreasonable because the removal of his credit for
acceptance of responsibility, coupled with the 24-month upward
variance, amounted to “double punishment.” He also contends
that the court in this particular case over-relied on one
particular fact, the post-plea criminal conduct, in making these
two adjustments to his sentence.
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As to the double punishment argument, we find no basis to
conclude that the district court’s decision is impermissible and
further note that the district court’s sentencing determination
is entitled to deference. United States v. Jeffrey, 631 F.3d
669, 679-80 (4th Cir. 2011). As to Stewart’s argument that his
sentence was substantively unreasonable because the court over-
relied on a single fact, we conclude that Stewart’s reliance on
United States v. Engle, 592 F.3d 495 (4th Cir. 2010), is
misplaced. In that case, we found that the district court
overrelied on one § 3553(a) factor in determining its sentence.
Id. at 504-05. Here, Stewart refers to the court’s reliance on
one fact—his postplea criminal activity—which implicates
multiple § 3553(a) factors. Given Stewart’s misdirected
argument and the deference accorded to the district court in
sentencing determinations, we conclude that Stewart’s sentence
is neither procedurally nor substantively unreasonable.
Accordingly, we dismiss Winfrey’s appeal of his sentence
and affirm the district court’s judgments in all other respects.
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.
No. 15-4201 AFFIRMED
No. 15-4205 AFFIRMED IN PART AND
DISMISSED IN PART
No. 15-4215 AFFIRMED
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