United States v. Jarvis Pate ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4654
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JARVIS LAMONT PATE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:17-cr-00056-CCE-1)
Submitted: April 19, 2018 Decided: April 23, 2018
Before GREGORY, Chief Judge, and THACKER and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North Carolina, for
Appellant. Terry Michael Meinecke, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jarvis Lamont Pate pled guilty to distribution of heroin, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C) (2012), and possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012). The district court sentenced Pate
to 151 months’ imprisonment for the drug conviction and a concurrent term of 120
months’ imprisonment for the firearm conviction. On appeal, Pate’s counsel has filed a
brief in accordance with Anders v. California, 386 U.S. 738 (1967), certifying that there
are no meritorious grounds for appeal. Pate has filed a pro se supplemental brief, raising
several issues. We affirm.
Pate asserts that his guilty plea was not knowing and voluntary because the district
court failed to advise him during the plea hearing that he might be subject to a career
offender enhancement under U.S. Sentencing Guidelines Manual § 4B1.1 (2016).
Because Pate did not seek to withdraw his plea, we review the acceptance of his plea only
for plain error. United States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014); see Puckett v.
United States, 556 U.S. 129, 135 (2009) (discussing standard). Our review of the
transcript of the guilty plea hearing leads us to conclude that the district court
substantially complied with the mandates of Rule 11 in accepting Pate’s guilty plea.
Contrary to Pate’s argument, “Rule 11 does not require courts to inform defendants of the
applicable [Sentencing] Guidelines . . . ranges.” United States v. Hairston, 522 F.3d 336,
340 (4th Cir. 2008). We therefore conclude that the district court did not plainly err in
accepting Pate’s guilty plea.
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Turning to Pate’s sentence, we review a sentence, “whether inside, just outside, or
significantly outside the Guidelines range[,] under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This review requires
consideration of both the procedural and substantive reasonableness of the sentence. Id.
at 49-51 (discussing standards). “Any sentence that is within or below a properly
calculated Guidelines range is presumptively reasonable. Such a presumption can only
be rebutted by showing that the sentence is unreasonable when measured against the 18
U.S.C. § 3553(a) [(2012)] factors.” United States v. Louthian, 756 F.3d 295, 306 (4th
Cir. 2014) (citation omitted).
Pate contends that the district court procedurally erred by incorrectly designating
him as a career offender, arguing that his North Carolina voluntary manslaughter
conviction is not a crime of violence under USSG § 4B1.2(a). His claim is foreclosed by
Circuit precedent. See United States v. Smith, 882 F.3d 460, 462 (4th Cir. 2018)
(holding, in context of Armed Career Criminal Act (“ACCA”), that North Carolina
voluntary manslaughter is violent felony); United States v. Montes-Flores, 736 F.3d 357,
363 (4th Cir. 2013) (recognizing that court relies interchangeably on Guidelines and
ACCA precedents in evaluating whether offense qualifies as crime of violence or violent
felony). Moreover, our review of the record reveals that the district court did not
otherwise commit procedural error at sentencing and that Pate fails to rebut the
presumption of substantive reasonableness afforded to his within-Guidelines-range
sentence. See Gall, 552 U.S. at 49-51; Louthian, 756 F.3d at 306.
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Finally, Pate contends that trial counsel rendered ineffective assistance by advising
him to accept a plea agreement containing an appeal waiver. * We will not consider such
a claim on direct appeal “[u]nless an attorney’s ineffectiveness conclusively appears on
the face of the record.” United States v. Faulls, 821 F.3d 502, 507-08 (4th Cir. 2016).
Our review of the record reveals no conclusive evidence of ineffective assistance.
Consequently, Pate’s claim “should be raised, if at all, in a 28 U.S.C. § 2255 [(2012)]
motion.” Id. at 508.
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious grounds for appeal. We therefore affirm the district court’s
judgment. This court requires that counsel inform Pate, in writing, of the right to petition
the Supreme Court of the United States for further review. If Pate 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 Pate. 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
*
The Government has not invoked the appeal waiver.
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