US v. Terron McAllister

Filing 920100528

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5045 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TERRON MCALLISTER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:06-cr-00044-D-1) Submitted: May 7, 2010 Decided: May 28, 2010 Before WILKINSON and Senior Circuit Judge. GREGORY, Circuit Judges, and HAMILTON, Affirmed by unpublished per curiam opinion. Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville, North Carolina, for Appellant. Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Pursuant to a written plea agreement, Terron McAllister pled guilty to possession with intent to distribute crack cocaine, in violation of 21 U.S.C. 841(a)(1) (2006), and using and carrying a firearm during and in relation to a drug trafficking (2006). offense, in violation of 18 U.S.C. 924(c)(1) The district court sentenced him to 180 months on the drug charge and a mandatory consecutive 60-month term on the firearm charge. California, there are 386 no Counsel has filed a brief pursuant to Anders v. U.S. 738 (1967), issues stating for that, but in his view, the meritorious appeal, raising issues of whether there was ineffective assistance of counsel or prosecutorial misconduct warranting setting aside the judgment, whether the district and court properly the calculated court erred the in advisory upwardly guideline range, whether departing from the advisory guideline range. Counsel also noted additional issues concerning the adequacy of the court's notice that it was contemplating an upward departure, whether the court erred by denying McAllister's request to reopen the evidence at sentencing, agreement agreed to by and whether for plea the a government violated range the than there plea that was arguing the higher guideline and in agreement, whether sufficient evidence to support the district court's findings at sentencing. In a pro se supplemental brief, McAllister asserted 2 that his criminal history was improperly computed, the district court improperly enhanced his sentence based on a drug quantity not admitted to by him, and that the evidence on which the court made sentencing findings was not sufficiently reliable. no reversible error, we affirm. In the plea agreement, the Government and McAllister stipulated that he would be accountable for between three and four grams of crack cocaine. who At sentencing, that the Government directed Finding presented witnesses testified McAllister members of a violent gang to threaten and assault two witnesses who had planned to testify against McAllister. Upon questioning by the court, one witness explained that he had paid McAllister 4.5 ounces of cocaine every month for a year in exchange for McAllister providing security for him. The district court continued the sentencing hearing to allow the probation officer to recompute the advisory guideline range taking this drug quantity into account. The district court also provided oral and written notice that it was considering an upward departure from the resulting guideline range based on McAllister's conduct of obstructing justice and committing perjury. McAllister thereafter moved the court to allow him to present additional evidence in rebuttal. At the reconvened sentencing hearing, the court accepted a proffer of evidence from McAllister and, considering the proffer, determined that it 3 did not alter the court's findings that McAllister committed perjury and obstructed justice. The court adopted the sentencing computation in the revised presentence report, and thereafter upwardly departed a total of four offense levels from the redetermined advisory guideline range and sentenced McAllister to 180 months on the drug charge and a mandatory consecutive 60-month term on the firearm charge. Initially, we note that, although not challenged by McAllister, we find that his guilty plea is valid. The district court fully complied with the mandates of Fed. R. Crim. P. 11 in accepting his guilty plea and ensured that McAllister entered his plea knowingly and voluntarily and that the plea was supported by an independent factual basis. DeFusco, 949 F.2d 114, 116, 119-20 See United States v. (4th Cir. 1991). Accordingly, we affirm McAllister's convictions. Although counsel raises the possibility of ineffective assistance of counsel, our review of the record discloses no evidence of this. Accordingly, that issue is not properly addressed on direct appeal. 434 F.3d 233, 239 of (4th Cir. See United States v. Baldovinos, 2009) (holding that on court will "address [claims ineffective assistance] direct appeal only if the lawyer's ineffectiveness conclusively appears from the record"). 4 McAllister breached the plea asserts agreement that or the Government in may have engaged prosecutorial misconduct by arguing at sentencing for a greater drug quantity than that stipulated in the plea agreement and by changing its position on McAllister's eligibility for the three-level reduction for acceptance of responsibility. However, after the district court made explicit findings that McAllister perjured himself during the sentencing hearing and influenced members of a gang in prison to threaten and assault two cooperating witnesses, the Government asked the court to find that, in light of his conduct, the Government was no longer bound by the agreed position with respect to sentencing factors. made this finding and therefore, the The district court change of Government's position was justified in light of the change of circumstances wrought by McAllister's conduct. McAllister also questions the sufficiency of the court's notice pursuant to Fed. R. Crim. P. 32(h) that it was considering upwardly departing. sufficient. We find the notice was clearly The court notified the parties during the initial sentencing hearing of the bases upon which it was considering departing. The court also continued the sentencing hearing to provide written notice and to allow McAllister the opportunity to provide evidence on the departure issue. notice. This was sufficient See Burns v. United States, 501 U.S. 129, 138 (1991). 5 McAllister also questions whether the court erred in refusing to reopen the evidentiary portion of the sentencing to allow him to present proffer rebuttal of by evidence. and, The even court accepted the that McAllister's evidence evidence considering found proffered McAllister, the court McAllister did, in fact, obstruct justice by requesting the gang members to assault and threaten cooperating witnesses. McAllister cannot show that he was prejudiced by the court's refusal to allow additional witnesses to testify in support of the proffer. Next, McAllister contends that the guideline sentencing range was improperly calculated. He asserts that the base offense level should have been 20 based on the stipulated drug quantity in the plea agreement. He also contends that he should have received a three-level reduction for acceptance of responsibility. However, after an evidentiary hearing at sentencing, the court found that McAllister was accountable for a significantly greater drug quantity and directed the probation officer to prepare a new presentence report including the 4.5 ounces (127.58 from grams) Perez of as cocaine payment per for month that McAllister providing received security. supports McAllister The district court credited Perez's testimony, which this quantity, and therefore this finding is not clearly erroneous. 6 McAllister contends that the criminal history was improperly computed, asserting that he should not have received a criminal history point for his "driving while license suspended/reckless driving to endanger" conviction for which he received a forty-five day sentence. This offense was properly See attributed a criminal history point under USSG 4A1.1(c). USSG 4A1.2(c)(1), (2). McAllister also contends that the district court erred in enhancing his sentence based on facts not admitted to by him in the plea agreement or the plea hearing. merit. This argument lacks See United States v. Booker, 543 U.S. 220, 246 (2005); United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005). McAllister factual findings in also challenges of the the district of court's justice support obstruction enhancements. We find no merit to this challenge. See United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009) (affording great deference to district court's credibility determinations) (quoting United States v. Feurtado, 191 F.3d 420, 424 n.2 (4th Cir. 1999)). In the Anders brief, counsel also addresses the reasonableness of the court's upward departure from the advisory guideline range established at sentencing due to the court's findings perjury. that We McAllister review for obstructed clear 7 justice a and committed court's error district determination that a defendant obstructed justice. United States v. Hughes, 401 F.3d 540, 560 (4th Cir. 2005). Here, the district court found that McAllister committed perjury during the sentencing hearing. This finding is sufficient to support USSG 3C1.1, comment. obstruction has of justice accepted in the obstruction of justice enhancement. (n.4(b)). "ordinarily Also, an enhancement that his a for indicates for defendant not responsibility criminal conduct," except "extraordinary cases in which adjustments under both 3C1.1 and 3E1.1 may apply." USSG 3E1.1, cmt. n.4. We find this is not such an extraordinary case as would allow McAllister the benefit of acceptance of responsibility in spite of his perjury and other obstructive conduct. F.3d 260, 263 (4th Cir. 2001). We also uphold the district court's upward adjustments to McAllister's offense level under USSG 5K2.0(a)(1) and See United States v. Hudson, 272 5K2.2 based on the severity of his obstructive conduct and the seriousness and extent of physical injury. Notably, McAllister's conduct resulted in five separate assaults--verbal or physical--of two cooperating witnesses. Perez was left with a visible scar over his eye following one attack, and McAllister repeatedly perjured himself during the sentencing hearing. These findings are sufficient to warrant an upward departure. See United States v. Scheetz, 293 F.3d 175, 191 (4th Cir. 2002) 8 (upholding departure under USSG 5K2.1 and USSG 5K2.2 because defendant risk[ed] "help[ed] serious put into or motion a chain of events that injury death" and because the defendant "should have foreseen the possibility of serious physical harm to another as a result of his actions"); United States v. Ventura, 146 F.3d 91, 97-98 (2d Cir. 1998) (justifying departure based on multiple, Furkin, unrelated F.3d acts 1276, of obstruction); (7th Cir. United 1997) States v. 119 1283-85 (approving upward departure for multiple acts of obstruction, including threatening witnesses). Finally, reasonable. we find that McAllister's sentence was We review a sentence for reasonableness under an Gall v. United States, 552 U.S. abuse-of-discretion standard. 38, 51 (2007), considering both the procedural and substantive reasonableness of a sentence. court correctly determined Id. We find that the district guideline range, McAllister's appropriately considered the 18 U.S.C. 3553(a) (2006) factors, addressed the arguments presented by the parties, and sufficiently explained the selected sentence. 49-50. Additionally, provided the we an find that the Gall, 552 U.S. at district court of the the appropriately reasons for individualized and for the explanation departures sentence above advisory guidelines range. See United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) ("[A]n individualized explanation must 9 accompany every sentence."); United States v. Engle, 592 F.3d 495, 500 (4th Cir. 2010) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)); United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. sentences We therefore affirm McAllister's convictions and his of 180 months on on the the drug charge charge. and See a 60-month 18 U.S.C. consecutive 924(c). sentence firearms This court requires that counsel inform McAllister, in writing, of the right to petition the Supreme Court of the United States for further review. If McAllister 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 We dispense state that a copy thereof was served on McAllister. 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 10

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