United States v. Rhodes , 429 F. App'x 340 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4469
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROY CECIL RHODES, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (4:09-cr-00064-F-3)
Submitted: March 28, 2011 Decided: May 20, 2011
Before MOTZ, KING, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Walter H. Paramore, III, WALTER H. PARAMORE, III, P.C.,
Jacksonville, North Carolina, for Appellant. George Edward Bell
Holding, United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roy Cecil Rhodes, Jr., appeals his conviction and 169-
month sentence for one count of conspiracy to distribute and
possess with intent to distribute more than fifty grams of
cocaine base in violation of 21 U.S.C. § 846 (2006), and one
count of distribution of five grams or more of cocaine base and
aiding and abetting in violation of 21 U.S.C. § 841(a)(1)
(2006), 18 U.S.C. § 2 (2006). Counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
certifying that there are no meritorious issues for appeal but
questioning whether the Fair Sentencing Act of 2010 should apply
to Rhodes’s sentence. The Government has elected not to file a
brief. Rhodes has filed a pro se supplemental brief.
I. Adequacy of the Rule 11 Hearing
In the Anders context, we first review whether the
district court properly conduced its Fed. R. Civ. P. 11 colloquy
before accepting Rhodes’s guilty plea. Because Rhodes did not
move in the district court to withdraw his guilty plea, any
error in the Rule 11 hearing is reviewed for plain error.
United States v. Martinez, 277 F.3d 517, 525-26 (4th Cir. 2002).
To establish plain error, he “must show: (1) an error was made;
(2) the error is plain; and (3) the error affects substantial
rights.” United States v. Massenburg, 564 F.3d 337, 342-43
2
(4th Cir. 2009) (reviewing unpreserved Rule 11 error). “The
decision to correct the error lies within [this court’s]
discretion, and [the court] exercise[s] that discretion only if
the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 343 (internal
quotation marks omitted). The defendant bears the burden of
showing plain error.
We have reviewed the record, and we conclude that the
district court complied with the mandates of Rule 11. The court
ensured that Rhodes’s guilty plea was knowing, voluntary, and
supported by an adequate factual basis. Accordingly, we decline
to disturb Rhodes’s conviction.
II. Reasonableness of Sentence
An appellate court reviews a sentence for
reasonableness under an abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of a sentence. Id. First, we must assess
whether the district court properly calculated the Guidelines
range, considered the 18 U.S.C. § 3553(a) (2006) factors,
analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. at 49-50; see
United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) (“[A]n
3
individualized explanation must accompany every sentence.”);
United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009)
(same). An extensive explanation is not required as long as the
appellate court is satisfied “‘that [the district court] has
considered the parties’ arguments and has a reasoned basis for
exercising [its] own legal decisionmaking authority.’” United
States v. Engle, 592 F.3d 495, 500 (4th Cir.) (quoting Rita v.
United States, 551 U.S. 338, 356 (2007)), cert. denied, 131 S.
Ct. 165 (2010).
Because Rhodes did not ask for a sentence different
from that imposed, we review the procedural reasonableness of
his sentence for plain error. See Lynn, 593 F.3d at 577-78.
Our review of the record reveals no such error. The district
court properly calculated the Guidelines range, heard arguments,
and offered an explanation for the sentence imposed. While the
explanation was not lengthy, the court clearly demonstrated that
it considered the parties’ arguments and created a proper record
for appellate review.
Turning to the substantive reasonableness of the
sentence, we presume on appeal that a sentence within a properly
calculated Guidelines range is reasonable. United States v.
Allen, 491 F.3d 178, 193 (4th Cir. 2007). After reviewing the
record, we conclude that Rhodes has not rebutted the presumption
of reasonableness accorded his within-Guidelines sentence.
4
III. Fair Sentencing Act of 2010
Finally, counsel questions whether Rhodes should have
received the benefit of the Fair Sentencing Act of 2010. This
argument was not raised in the district court, and we conclude
that it is waived. In any event, however, we conclude that
Rhodes is not entitled to the benefit of the Fair Sentencing
Act, as his offense predates the effective date of the Act. See
United States v. Diaz, 627 F.3d 930, 931 (2d Cir. 2010); United
States v. Brewer, 624 F.3d 900, 909 n.7 (8th Cir. 2010), cert.
denied, ___ U.S.L.W. ___ (U.S. Mar. 28, 2011) (No. 10-9224);
United States v. Bell, 624 F.3d 803, 814 (7th Cir. 2010); United
States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010), petition
for cert. filed, ___ U.S.L.W. ___ (U.S. Feb. 15, 2011) (No. 10-
9271); United States v. Carradine, 621 F.3d 575, 580
(6th Cir. 2010), cert. denied, ___ U.S.L.W. ___ (U.S. Mar. 21,
2011) (No. 10-8937).
Rhodes has filed a pro se supplemental brief raising a
similar Fair Sentencing Act claim, as well as a claim of
ineffective assistance of counsel, and claims that his sentence
violates Kimbrough v. United States, 552 U.S. 85 (2007) and
Furman v. Georgia, 408 U.S. 238 (1972). With respect to his
claim of ineffective assistance of counsel, we conclude that
ineffective assistance is not apparent on the face of the record
and the claim is accordingly not cognizable on direct appeal.
5
With respect to his other claims, we conclude that they are
without merit.
Finally, in accordance with Anders, we have reviewed
the entire record and have found no meritorious issues for
appeal. We therefore affirm the judgment of the district court.
This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States
for further review. If the client 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 the client. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
6