US v. Lewellyn Vaught

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:10-cr-00075-D-2 Copies to all parties and the district court/agency. [999016375].. [12-4148, 12-4149]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4148

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEWELLYN TERRELL VAUGHT, a/k/a Gee Bee,
Defendant - Appellant.

No. 12-4149

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DESMON TERRILL BARNHILL, a/k/a T.B., a/k/a Terry,
Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever, III,
Chief District Judge. (7:10-cr-00075-D-2; 7:10-cr-00075-D-1)

Submitted:

December 21, 2012

Decided:

January 7, 2013

Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.

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Dismissed in part; affirmed in part by unpublished per curiam
opinion.

W. H. Paramore, III, THE LAW OFFICES OF W. H. PARAMORE, III,
Jacksonville, North Carolina; Mark R. Sigmon, GRAEBE HANNA &
WELBORN,
PLLC,
Raleigh,
North
Carolina,
for
Appellants.
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A federal grand jury returned a multi-count indictment
against
Vaught

Lewellyn
pled

Terrell

guilty

Vaught

without

a

and

Desmon

plea

Terrill

agreement

to

Barnhill.

aiding

and

abetting the distribution of cocaine, in violation of 18 U.S.C.
§ 2 (2006) and 21 U.S.C.A. § 841(a)(1) (West 2006 & Supp. 2012)
(count

four),

21 U.S.C.A.
without

a

and

distribution

§ 841(a)(1)
plea

(count

agreement

to

of

cocaine,

five).
two

in

violation

Barnhill

counts

of

pled

of

guilty

distribution

of

cocaine, in violation of 21 U.S.C.A. § 841(a)(1) (counts six and
eight).

The

Government

later

filed

a

one-count

criminal

information charging Barnhill with conspiracy to possess with
intent to distribute and to distribute 500 grams or more of
cocaine, in violation of 21 U.S.C. § 846 (2006) and a two-count
criminal information charging Vaught with conspiracy to possess
with intent to distribute and to distribute 500 grams or more of
cocaine,

in

violation

of

21

U.S.C.

§ 846

(count

one),

and

possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1), 924 (2006) (count two).

Both defendants

pled guilty as charged in the informations, pursuant to written
plea agreements.
The

district

court

calculated

Vaught’s

Guidelines

ranges on counts one, four, and five at 168 to 210 months’
imprisonment and Guidelines sentence on count two at 120 months’
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imprisonment and sentenced Vaught to three concurrent terms of
168 months’ imprisonment on counts one, four, and five and a
concurrent term of 120 months’ imprisonment on count two.

The

district

all

court

calculated

Barnhill’s

Guidelines

range

on

three counts to which he pled guilty at 168 to 210 months’
imprisonment and sentenced him to three concurrent terms of 180
months’ imprisonment.
On appeal, counsel have filed a joint brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that there
are

no

meritorious

issues

for

appeal.

Counsel

for

Vaught

questions, however, whether the district court erred in adopting
the presentence report’s calculation of the amount of cocaine
base for which Vaught was responsible.
questions

whether

voluntarily

made,

Barnhill’s
whether

guilty

trial

Counsel for Barnhill

pleas

counsel

were

knowingly

rendered

and

ineffective

assistance, and whether Barnhill’s sentence is procedurally and
substantively reasonable.
appeals

of

defendants’

appellate rights.

The Government moves to dismiss the
sentences

based

on

their

waivers

of

Both defendants were informed of their rights

to file pro se supplemental briefs, and Vaught has filed a pro
se brief raising several challenges, including challenges to his
sentences.

We dismiss in part and affirm in part.
A

defendant

may

waive

waiver is knowing and intelligent.
4

the

right

to

appeal

if

that

United States v. Poindexter,

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492 F.3d 263, 270 (4th Cir. 2007).

Generally, if the district

court fully questions a defendant regarding the waiver of his
right to appeal during the plea colloquy performed in accordance
with

Fed.

R.

Crim.

enforceable.

United

(4th Cir. 2005).
to

appeal

novo.

is

P.

11,

States

the
v.

waiver
Johnson,

is

both

410

valid

and

137,

151

F.3d

Whether a defendant validly waived his right
a

question

of

law

this

court

reviews

de

United States v. Blick, 408 F.3d 162, 168 (4th Cir.

2005).
Our review of the record leads us to conclude that
Vaught knowingly and voluntarily waived the right to appeal his
168-month sentence on count one and his 120-month sentence on
count

two.

We

further

conclude

that

Barnhill

knowingly

and

voluntarily waived his right to appeal his 180-month sentence
imposed with respect to the conspiracy count in the criminal
information.

We

therefore

grant

the

Government’s

motion

to

dismiss in part and dismiss the appeals of those sentences.
Although

Vaught’s

and

Barnhill’s

appeal

waivers

insulate those sentences from appellate review, the waivers do
not prohibit our review of the non-sentencing claims raised by
Barnhill’s counsel and Vaught, the sentencing claims raised by
counsel

in

the

Anders

brief

and

Vaught

in

his

pro

se

supplemental brief to the extent they pertain to the sentences
imposed on counts four, five, six, and eight of the indictment,
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Accordingly, we

and the remainder of record pursuant to Anders.

deny the Government’s motion to dismiss the appeals in part.
Barnhill’s

counsel

questions

whether

the

district

court reversibly erred in accepting his guilty pleas. *

Because

Barnhill did not move in the district court to withdraw his
guilty pleas, the adequacy of the Fed. R. Crim. P. 11 hearings
is reviewed for plain error only.

United States v. Martinez,

277 F.3d 517, 524-26 (4th Cir. 2002).

To demonstrate plain

error, a defendant must show: (1) there was error; (2) the error
was

plain;

and

(3)

the

error

affected

his

substantial

rights. United States v. Olano, 507 U.S. 725, 732 (1993).

In

the

to

guilty

plea

context,

a

defendant

meets

his

burden

establish that a plain error affected his substantial rights by
showing a reasonable probability that he would not have pled
guilty

but

for

the

Rule

11

omission.

United

States

v.

Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).
Our
hearings

review

leads

us

of

the

transcripts

to

conclude

that

of
the

the

guilty

district

plea
court

substantially complied with the mandates of Rule 11 in accepting
Barnhill’s guilty pleas and that the court’s omissions did not
*

The Government moves to dismiss Barnhill’s challenge to
the acceptance of his guilty pleas.
This constitutes, in
effect, a motion for summary affirmance of the unwaived claim.
This
court
reserves
such
a
motion
for
extraordinary
circumstances not present here. 4th Cir. R. 27(f).

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Barnhill’s

transcripts

reveal

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substantial
that

the

rights.

district

Critically,

ensured

the

pleas

the
were

supported by independent bases in fact and that Barnhill entered
the pleas knowingly and voluntarily with an understanding of the
consequences.

United States v. DeFusco, 949 F.2d 114, 116, 120

(4th Cir. 1991).

Accordingly, we discern no plain error in the

district court’s acceptance of Barnhill’s guilty pleas.
Next, Barnhill’s counsel and Vaught question whether
trial

counsel

sentencing.

rendered

ineffective

assistance

prior

to

After review of the record, we find these claims

inappropriate

for

resolution

on

direct

appeal.

Because

ineffectiveness of counsel is not conclusively established by
the record, Barnhill and Vaught must assert such claims, if at
all, in a motion pursuant to 28 U.S.C.A. § 2255 (West Supp.
United States v. King, 119 F.3d 290, 295 (4th Cir.

2012).
1997).

Turning to the district court’s imposition of sentence
on counts four, five, six, and eight, we review these sentences
for

reasonableness

standard.”
This

“under

a

deferential

abuse-of-discretion

Gall v. United States, 552 U.S. 38, 41, 51 (2007).

review

entails

procedural

and

sentence.

Id. at 51.

appellate

substantive

consideration

of

reasonableness

both

the

of

the

In determining procedural reasonableness,

we consider whether the district court properly calculated the
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Guidelines

range,

gave

the

parties

an

opportunity to argue for an appropriate sentence, considered the
18 U.S.C. § 3553(a) (2006) factors, selected a sentence based on
clearly erroneous facts, and sufficiently explained the selected
sentence.

Id. at 49-51.

If the sentence is free of significant

procedural error, we review it for substantive reasonableness,
“tak[ing]

into

circumstances.”

account
Id. at

the

51.

If

the

totality
sentence

of
is

the

within

the

properly calculated Guidelines range, we apply a presumption on
appeal that the sentence is substantively reasonable.

United

States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).
Such a presumption is rebutted only if the defendant shows “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).
After review of the record, we conclude that Vaught
and

Barnhill

district

both

court’s

fail

147

review);

(4th

Cir.

United

establish

calculations

attributable to them.
125,

to

States

of

any
the

clear

error

drug

in

the

quantities

See United States v. Kellam, 568 F.3d
2009)
v.

(stating

Randall,

171

the

standard

F.3d

195,

of

210-11

(4th Cir. 1999) (explaining that a defendant bears the burden of
establishing
district

that

court

information

relied

on

in

in

the

presentence

calculating
8

the

report

relevant

the
drug

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quantity

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is

incorrect);

see

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also

United

States

v.

Powell,

650 F.3d 388, 392 (4th Cir.) (holding that a sentencing court
may

consider

relevant

uncorroborated

hearsay,

sufficient

indicia

of

information

before

it,

“provided

that

the

reliability

to

support

including

information
its

has

accuracy”

(internal quotation marks omitted)), cert. denied, 132 S. Ct.
350 (2011).
The district court also otherwise correctly calculated
the defendants’ Guidelines ranges, heard argument from counsel,
gave Barnhill the opportunity to allocute, and heard allocution
from Vaught.

The court also considered the § 3553(a) factors

with

to

respect

each

defendant

and

provided

an

adequate

explanation of its individualized assessment of those factors in
determining the defendants’ sentences.

Defendants do not offer,

and our review pursuant to Anders does not reveal, any grounds
to rebut the presumption on appeal that their within-Guidelines
sentences

are

substantively

reasonable.

Accordingly,

we

conclude that the district court did not abuse its discretion in
sentencing Vaught and Barnhill on those counts.
Finally, in accordance with Anders, we have reviewed
the remainder of the record and have found no meritorious issues
for review.

Accordingly, we affirm the defendants’ convictions

on all counts and their sentences on counts four, five, six, and
eight, and dismiss the appeals of their sentences on counts one,
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two, and the conspiracy count in the information filed against
Barnhill.

We also deny as moot Vaught’s motion to accelerate

case processing.
This

court

requires

that

counsel

inform

Vaught

and

Barnhill, in writing, of their rights to petition the Supreme
Court of the United States for further review.

If Vaught or

Barnhill 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
Vaught or Barnhill.
We dispense with oral argument because the facts and
legal
before

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

DISMISSED IN PART;
AFFIRMED IN PART

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