US v. Otis Sutton

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:12-cr-00013-MOC-DCK-6. Copies to all parties and the district court/agency. [999354976]. [13-4795]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4795

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OTIS SUTTON,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:12-cr-00013-MOC-DCK-6)

Submitted:

April 28, 2014

Decided:

May 13, 2014

Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

J. Edward Yeager, Jr., Cornelius, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Otis Sutton appeals the 219-month sentence imposed by
the district court after he pled guilty to robbery by force or
violence,

in

brandishing

violation

a

firearm

of

18

during

U.S.C.

and

in

§ 1951(a)
relation

to

(2012),
a

crime

and
of

violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (2012).
On appeal, Sutton’s counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), stating that there are no
meritorious

grounds

for

appeal

but

questioning

whether

the

district court erred by denying Sutton’s motion at sentencing
that

he

was

entitled

to

a

lower

mandatory

minimum

sentence

because his first plea agreement with the Government erroneously
stated the mandatory minimum sentence for the firearm offense.
Counsel

suggests

that

the

magistrate

judge

erred

by

calling

attention to this error and prompting a reformation of the plea
agreement with the correct mandatory minimum sentence.
has

filed

a

pro

se

brief,

procedurally unreasonable.

arguing

that

his

Sutton

sentence

is

We affirm.

Sutton asserts that the magistrate judge impermissibly
participated in plea negotiations by highlighting the error in
the first plea agreement.
below.

Sutton did not raise this argument

Thus, our review is for plain error.

United States v.

Bradley, 455 F.3d 453, 461 (4th Cir. 2006); see Henderson v.

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United

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States,

133

S.

Ct.

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1121,

1126-27

(2013)

(discussing

standard).
Rule

11(c)(1)

of

the

Federal

Rules

of

Criminal

Procedure forbids judicial participation in plea negotiations.
The primary purpose of Rule 11(c)(1) is to “guard[] against the
high and unacceptable risk of coercing a defendant to enter into
an involuntary guilty plea.”
quotation marks omitted).

Bradley, 455 F.3d at 460 (internal
Here, Sutton had already decided to

plead guilty when the magistrate judge pointed out the error in
the

mandatory

minimum

term

disclosed

by

the

plea

agreement.

Moreover, at the plea hearing, the magistrate judge informed
Sutton of the seven-year mandatory minimum sentence he faced, as
reflected in the revised plea agreement, and Sutton stated that
he understood.

The magistrate judge did not “promot[e] a guilty

plea []or a trial,” United States v. Burnside, 588 F.3d 511, 522
(7th

Cir.

impermissibly

2009)

(holding

participate

in

that
plea

district

court

negotiations

did

where

not
court

informed defendant of applicable mandatory minimum in absence of
substantial

assistance

motion),

participate in plea negotiations.

and

therefore

did

not

Thus, this claim fails.

Sutton next contends that his sentence is procedurally
unreasonable because the evidence contradicted the loss amount
the district court attributed to him.

We review a sentence for

reasonableness, applying an abuse of discretion standard.
3

Gall

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

“[S]entencing courts

. . . make factual findings concerning sentencing factors . . .
by a preponderance of the evidence.”
560 F.3d 246, 258 (4th Cir. 2009).

United States v. Perry,

We have thoroughly reviewed

the transcript of Sutton’s sentencing hearing and conclude that
the

loss

amount

attributed

to

Sutton

was

supported

by

a

preponderance of the evidence.

See United States v. Thorson,

633

2011)

F.3d

312,

permissible

317

views

(4th
of

the

Cir.

evidence,

(“Where
the

there

are

factfinder’s

two

choice

between them cannot be clearly erroneous.”) (internal quotation
marks omitted).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious grounds for
appeal.

We

therefore

affirm

the

district

court’s

judgment.

This court requires that counsel inform Sutton, in writing, of
the right to petition the Supreme Court of the United States for
further review.

If Sutton 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 Sutton.

We dispense with oral argument because

the facts and legal contentions are adequately presented in the

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materials

before

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this

court

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and

argument

would

not

aid

the

decisional process.

AFFIRMED

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