United States v. Anthony Pennington , 584 F. App'x 141 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4232
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY ALLEN PENNINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh,
District Judge. (3:13-cr-00037-GMG-JES-1)
Submitted: September 30, 2014 Decided: October 7, 2014
Before GREGORY and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Stephen D. Herndon, Wheeling, West Virginia, for Appellant.
Jarod James Douglas, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Allen Pennington appeals the 168-month
sentence imposed by the district court following his guilty plea
to traveling in interstate commerce with intent to engage in
illicit sexual conduct, in violation of 18 U.S.C. § 2423(b)
(2012). In accordance with Anders v. California, 386 U.S. 738(1967), Pennington’s counsel has filed a brief certifying that
there are no meritorious grounds for appeal but questioning
whether (1) Pennington’s plea was knowing and voluntary, (2) the
evidence considered at Pennington’s sentencing was appropriately
reliable, (3) Pennington received the effective assistance of
counsel, and (4) the district court judge should have recused
herself. Although Pennington has not filed a supplemental pro
se brief, his notice of appeal listed errors materially
identical to those counsel raises. We affirm.
Because Pennington did not move to withdraw his plea,
we review his Fed. R. Crim. P. 11 hearing for plain error.
United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002);
see United States v. Olano, 507 U.S. 725, 732 (1993) (discussing
standard). When accepting the plea, the district court
substantially complied with Rule 11, neglecting only to inform
Pennington that it was not bound by the sentencing
recommendations in the plea agreement. See Fed. R. Crim. P.
11(c)(3)(B). This minor omission did not affect Pennington’s
2
substantial rights, and the district court ensured that the plea
was knowing and voluntary. Although Pennington claims now that
his plea was motivated by his desire to assist one of his former
victims and that he never had the opportunity to review all of
the evidence against him, these claims are belied by
Pennington’s sworn statements during the Rule 11 hearing. See
Blackledge v. Allison, 431 U.S. 63, 74 (1977); Fields v.
Attorney Gen., 956 F.2d 1290, 1299 (4th Cir. 1992).
Accordingly, we find no error, plain or otherwise, in the
acceptance of Pennington’s plea. United States v. Lambey, 974
F.2d 1389, 1394 (4th Cir. 1992) (en banc).
Turning to Pennington’s challenges to his sentence, we
review the sentence for reasonableness, using “an abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 51
(2007). We must first review for “significant procedural
error[s],” including “improperly calculating[] the Guidelines
range, . . . failing to consider the [18 U.S.C.] § 3553(a)
[(2012)] factors, . . . or failing to adequately explain the
chosen sentence.” Gall, 552 U.S. at 51. Only if we find a
sentence procedurally reasonable may we consider its substantive
reasonableness. United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009).
Here, the district court correctly calculated
Pennington’s Guidelines range, and there is no merit in
3
Pennington’s suggestion that he was sentenced based on
unreliable or otherwise incompetent evidence, especially since
he raised no such objection at sentencing. See United States v.
Terry, 916 F.2d 157, 162 (4th Cir. 1990). Because the district
court also adequately explained Pennington’s within-Guidelines
sentence, we conclude that the sentence is procedurally and
substantively reasonable. United States v. Montes-Pineda, 445
F.3d 375, 379 (4th Cir. 2006) (explaining that within-Guidelines
sentence is presumed substantively reasonable).
Next, Pennington claims that the district court judge
should have recused herself because she presided as a state
court judge over Pennington’s prior criminal proceedings. Only
in the rarest circumstance will a judge’s prior familiarity with
a party based on previous judicial proceedings warrant recusal.
See United States v. Mitchell, 886 F.2d 667, 671 (4th Cir.
1989); see also Liteky v. United States, 510 U.S. 540, 555
(1994). No such circumstances are present here.
Finally, we decline to consider at this time
Pennington’s several claims of ineffective assistance of
counsel. Unless clearly apparent on the face of the record,
such claims are not cognizable on direct appeal. See United
States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).
In accordance with Anders, we have reviewed the entire
record and have found no meritorious grounds for appeal. We
4
therefore affirm the district court’s judgment. This court
requires that counsel inform Pennington, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Pennington requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, counsel may move in this court for leave to withdraw
from representation. Counsel’s motion must state that a copy
thereof was served on Pennington. 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
5