United States v. Urchel Hill , 546 F. App'x 272 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4262
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
URCHEL LAVOY HILL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:12-cr-00329-TDS-1)
Submitted: October 30, 2013 Decided: November 21, 2013
Before KEENAN, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, William C. Ingram,
First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Stephen Thomas Inman, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Urchel Lavoy Hill appeals his conviction after he pled
guilty to filing a false tax return, in violation of 26 U.S.C.
§ 7206(1) (2006), and his sentence of thirty-six months
imprisonment. Hill’s counsel has filed a brief pursuant to
Anders v. California, 387 U.S. 738 (1967), stating that he has
found no meritorious issues for appeal, noting that there was
nothing in the record to undermine the validity of Hill’s plea,
and questioning whether the district court erred by denying Hill
a downward adjustment for acceptance of responsibility and
whether the sentence is otherwise reasonable. Hill filed a pro
se supplemental brief, raising additional sentencing issues. We
affirm.
Hill’s counsel raises as a potential issue the
validity of Hill’s guilty plea but points to no specific error
in the Fed. R. Crim. P. 11 hearing. Before accepting a guilty
plea, the trial court must conduct a plea colloquy in which it
informs the defendant of, and confirms that the defendant
comprehends, the rights he is relinquishing by pleading guilty,
the charge to which he is pleading, and the maximum possible
penalty he faces. Fed. R. Crim. P. 11(b); United States v.
DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). The court also must
ensure that the plea was voluntary and not the result of
threats, force, or promises not contained in the plea agreement.
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Fed. R. Crim. P. 11(b)(2). Additionally, the court “must
determine that there is a factual basis for the plea.” Fed. R.
Crim. P. 11(b)(3).
Because Hill did not seek to withdraw his guilty plea
or otherwise preserve any alleged Rule 11 error by timely
objection, we review the plea colloquy for plain error. United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Upon our
review we conclude that the district court fully complied with
the mandates of Rule 11 in accepting Hill’s plea. The court
ensured that the plea was knowing and voluntary and supported by
an independent factual basis. See DeFusco, 949 F.2d at 116,
119-20. Thus, we discern no plain error and affirm Hill’s
conviction.
Next, Hill and his counsel question the calculation of
the Guidelines range and the reasonableness of the sentence. We
review a sentence for reasonableness, applying “a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41 (2007). We “first ensure that the district court
committed no significant procedural error,” such as improper
calculation of the Guidelines range, insufficient consideration
of the 18 U.S.C. § 3553(a) (2012) factors, and inadequate
explanation of the sentence imposed. Gall, 552 U.S. at 51. If
we find the sentence procedurally reasonable, we also must
examine the substantive reasonableness of the sentence,
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“tak[ing] into account the totality of the circumstances.” Id.
A within-Guidelines sentence is presumed reasonable on appeal,
United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012), and
the defendant bears the burden to “rebut the presumption by
demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted).
Although Hill complains that the district court
imposed sentencing enhancements that were not submitted to a
jury or admitted by him, we have previously rejected this
argument. See United States v. Blauvelt, 638 F.3d 281, 293 (4th
Cir. 2011) (collecting cases). Hill also suggests that the
district court erred by declining to award an acceptance of
responsibility adjustment after the district court found that he
had obstructed justice. * We conclude that the district court did
*
Neither Hill nor his counsel disputes on appeal the
applicability of the obstruction of justice adjustment. Our
review of the record pursuant to Anders reveals that the
district court did not err—plainly or otherwise—in finding that
a preponderance of the evidence supported the adjustment. See
United States v. Greene, 704 F.3d 298, 303-04 (4th Cir. 2013)
(discussing plain error standard of review), cert. denied, __
U.S. __, 2013 WL 1808696 (U.S. Oct. 15, 2013) (No. 12-9965); see
United States v. Thorson, 633 F.3d 312, 320-21 (4th Cir. 2011)
(discussing obstruction of justice enhancement); see also U.S.
Sentencing Guidelines Manual (“USSG”) § 3C1.1 & cmt. n.4(C)
(2012).
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not clearly err in refusing to award a downward adjustment for
acceptance of responsibility because Hill’s case was not an
“extraordinary case[] in which adjustments under both [USSG]
§§ 3C1.1 and 3E1.1 may apply.” USSG § 3E1.1 cmt. n.4; see
United States v. Bartko, 728 F.3d 327, 345 (4th Cir. 2013)
(stating standard of review); United States v. Knight, 606 F.3d
171, 176 (4th Cir. 2010) (reviewing claim as factual matter).
Next, contrary to Hill’s assertion that the Government failed to
submit sufficient information to establish that he owed $92,337
in restitution to the Internal Revenue Service for unpaid taxes
over a four-year period, Hill stipulated to the restitution
amount in the plea agreement. We therefore conclude that Hill’s
sentence is procedurally reasonable.
Finally, Hill suggests that his sentence is
substantively unreasonable because he received the statutory
maximum sentence on his first criminal conviction. Because
Hill’s sentence is within a properly calculated Guidelines range
and Hill has not rebutted the presumption of reasonableness
afforded such sentences, we conclude that the sentence is
substantively reasonable. See Susi, 674 F.3d at 289; Montes-
Pineda, 445 F.3d at 379. Thus, the district court did not abuse
its discretion in sentencing Hill to thirty-six months
imprisonment.
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In accordance with Anders, we have reviewed the entire
record on appeal and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This Court requires that counsel inform Hill, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Hill 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 Hill. 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
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