United States v. Troy Oliver , 576 F. App'x 193 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4769
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TROY OLIVER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Margaret B. Seymour, Senior
District Judge. (5:12-cr-00808-MBS-8)
Submitted: May 27, 2014 Decided: June 20, 2014
Before GREGORY and DIAZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mario A. Pacella, STROM LAW FIRM, L.L.C., Columbia, South
Carolina, for Appellant. John David Rowell, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Troy Oliver appeals from his conviction and 120-month
sentence imposed following his guilty plea pursuant to a plea
agreement to two counts of possession with intent to distribute
a quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(D) (2012). Oliver’s counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but questioning whether
the district court erred in crediting the sentencing testimony
of witness George Torres. Oliver has filed pro se supplemental
briefs in which he asserts that his guilty plea was not knowing
and voluntary, challenges the district court’s calculation of
the drug quantity attributable to him under the U.S. Sentencing
Guidelines Manual (“U.S.S.G.”) (2012), challenges the district
court’s denial of an offense-level adjustment under U.S.S.G.
§ 3E1.1 for acceptance of responsibility, and argues that trial
counsel rendered ineffective assistance. The government
declined to file a brief. We affirm.
Oliver contends that his guilty plea was not knowing
and voluntary because the district court failed to ensure that
he understood the elements of the crimes to which he was
pleading guilty. Because Oliver never moved in the district
court to withdraw his guilty plea on this basis, we review this
claim for plain error only. United States v. Martinez, 277 F.3d
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517, 524-27 (4th Cir. 2002). Federal Rule of Criminal Procedure
11(b)(1)(G) requires the district court to inform the defendant
of and ensure the defendant understands the nature of each
charge to which he is pleading guilty. To comply with this
requirement, the district court must explain and ensure the
defendant understands what the government must prove to
establish guilt. See United States v. Carter, 662 F.2d 274, 276
(4th Cir. 1981). Failure to explain the elements or nature of
the offense during the Rule 11 hearing is error per se. Id.
After review of the record, we discern no plain error
by the district court. At the Rule 11 hearing, the district
court orally informed Oliver of the elements of the offenses to
which he was pleading guilty and elicited that Oliver understood
the crimes with which he was charged and what the government
would have to prove to establish his guilt. The elements were
also set forth in the written plea agreement that Oliver signed
and stated under oath that he understood. Cf. United States v.
Goins, 51 F.3d 400, 402-04 (4th Cir. 1995).
Next, both counsel and Oliver challenge the district
court’s calculation of the relevant drug quantity under the
Sentencing Guidelines. Relying in part on the testimony at
sentencing by witness George Torres, the district court held
Oliver accountable for 4,053.75 kilograms of marijuana
equivalency, resulting in a base offense level of thirty-four.
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On appeal, counsel argues that the district court erred in
crediting Torres’s testimony because the testimony was impeached
on cross-examination. Even if counsel is correct, however, it
was the province of the district court as the finder of fact to
determine the credibility of Torres’s testimony and the weight
to afford it, including by considering any inconsistencies in
the testimony. See United States v. Dinkins, 691 F.3d 358, 387
(4th Cir. 2012) (noting that “it is the [fact finder’s] province
to weigh the credibility of the witnesses, and to resolve any
conflicts in the evidence”), cert. denied, 133 S. Ct. 1278
(2013). Accordingly, this claim is without merit.
Oliver argues that the district court violated his
Sixth Amendment right to a jury trial when it calculated the
relevant drug quantity under the Guidelines without a jury
finding beyond a reasonable doubt that the facts supported that
calculation. Because Oliver did not raise this objection in the
district court, our review is for plain error. United States v.
Carthorne, 726 F.3d 503, 509 (4th Cir. 2013), cert. denied, 134
S. Ct. 1326 (2014).
We discern no plain error by the district court.
Oliver’s counts of conviction carried a statutory maximum prison
term of sixty months per count. 21 U.S.C. § 841(b)(1)(D). The
district court’s application of the base offense level for the
drug quantity it attributed to Oliver did not result in a
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sentence greater than that authorized by Oliver’s guilty plea in
this case. Accordingly, the district court did not violate the
Sixth Amendment in making the calculation. See United States v.
Booker, 543 U.S. 220, 232-44 (2005) (holding that judge-found
sentence enhancements mandatorily imposed under the Guidelines
that result in a sentence greater than that authorized by the
jury verdict or facts admitted by the defendant violate the
Sixth Amendment’s guarantee of the right to trial by jury);
United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008)
(“The point is . . . that the Guidelines must be advisory, not
that judges may find no facts”).
Oliver also questions whether the district court erred
in denying him a reduction in his offense level under U.S.S.G.
§ 3E1.1 for acceptance of responsibility. As Oliver did not
object to the district court’s decision to deny him a reduction
under this provision, we review this claim for plain error as
well. Carthorne, 726 F.3d at 509. We discern no plain error by
the district court.
A reduction in a defendant’s offense level is
warranted if he clearly demonstrates acceptance of
responsibility for his offenses. U.S.S.G. § 3E1.1. Such an
adjustment does not result automatically from the entry of a
guilty plea; rather, “the defendant must prove by a
preponderance of the evidence that he has clearly recognized and
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affirmatively accepted personal responsibility for his criminal
conduct.” United States v. May, 359 F.3d 683, 693 (4th Cir.
2004) (internal quotation marks omitted). A defendant who
“falsely denies, or frivolously contests, relevant conduct that
the [district] court determines to be true has acted in a manner
inconsistent with acceptance of responsibility.” U.S.S.G.
§ 3E1.1 cmt. n.1(A). We conclude after review of the record
that the district court’s decision to deny Oliver a reduction
under § 3E1.1 for acceptance of responsibility is supported by
Oliver’s false denial at sentencing of relevant conduct.
Finally, Oliver contends that trial counsel rendered
ineffective assistance for not advising him that he could face
the statutory maximum sentence of sixty months’ imprisonment on
each of the counts to which he pled guilty and that the
sentences for those counts could run consecutively to one
another. After review of the record, we find this claim
inappropriate for resolution on direct appeal. Because the
record does not conclusively establish ineffectiveness of
counsel, Oliver must assert such a claim, if at all, in a motion
pursuant to 28 U.S.C § 2255 (2012). United States v. King, 119
F.3d 290, 295 (4th Cir. 1997).
In accordance with Anders, we have reviewed the
remainder of the record and have found no meritorious issues for
appeal. Accordingly, we affirm the district court’s judgment.
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This court requires that counsel inform Oliver, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Oliver 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 Oliver.
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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