US v. Lloyd Jarreau, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:13-cr-00051-F-1 Copies to all parties and the district court/agency. [999473051].. [14-4067]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4067

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LLOYD JARREAU, 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. (7:13-cr-0051-F-1)

Submitted:

October 22, 2014

Decided:

November 12, 2014

Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Diana Stavroulakis, Pittsburgh, Pennsylvania, for Appellant.
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Unpublished opinions are not binding precedent in this circuit.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:
Lloyd Jarreau, Jr. appeals his conviction and sentence
after pleading guilty to possession with intent to distribute 28
grams

or

more

of

cocaine

base

and

a

quantity

violation of 21 U.S.C. § 841(a)(1) (2012).

of

heroin

in

Jarreau’s attorney

has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967),

asserting

that

there

are

no

meritorious

grounds

for

appeal but raising the issues of whether the district court had
jurisdiction over the case, whether Jarreau’s guilty plea was
knowing and voluntary, whether his appeal waiver was knowing and
voluntary, and whether his sentence was reasonable.

Jarreau was

notified of his right to file a pro se supplemental brief but
has not done so.

We affirm.

First, because Jarreau was indicted and pled guilty to
a federal crime, the district court had jurisdiction over the
case pursuant to 18 U.S.C. § 3231 (2012).

Counsel next raises

the issue of whether Jarreau’s plea was knowing and voluntary.
“In

order

for

a

guilty

plea

to

be

valid,

the

Constitution imposes ‘the minimum requirement that [the] plea be
the

voluntary

expression

of

[the

defendant’s]

own

choice.’”

United States v. Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010)
(quoting Brady v. United States, 397 U.S. 742, 748 (1970)).

“It

must

the

reflect

alternative

a

voluntary

choices

of

and

intelligent

action

open
2

to

the

choice

among

defendant.”

Id.

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(citation and internal quotations omitted).

“In evaluating the

constitutional validity of a guilty plea, courts look to the
totality

of

defendant’s

the

solemn

truthfulness.”
In

circumstances

surrounding

declaration

of

[it],

guilt

the

presumption

a

granting

of

Id. (citation and internal quotations omitted).

federal

cases,

Rule

11

of

the

Federal

Rules

of

Criminal Procedure “governs the duty of the trial judge before
accepting a guilty plea.”
n.5 (1969).

Boykin v. Alabama, 395 U.S. 238, 243

Rule 11 “requires a judge to address a defendant

about to enter a plea of guilty, to ensure that he understands
the law of his crime in relation to the facts of his case, as
well as his rights as a criminal defendant.”
Vonn, 535 U.S. 55, 62 (2002).
court’s

decision

colloquy.”

as

to

United States v.

We “accord deference to the trial

how

best

to

conduct

the

mandated

United States v. DeFusco, 949 F.2d 114, 116 (4th

Cir. 1991).

A guilty plea may be knowingly and intelligently

made based on information received before the plea hearing.
id.;

see

also

Bradshaw

v.

Stumpf,

545

U.S.

175,

183

See

(2005)

(trial court may rely on counsel’s assurance that the defendant
was properly informed of the elements of the crime).
“A federal court of appeals normally will not correct
a legal error made in criminal trial court proceedings unless
the

defendant

attention.”

first

brought

the

error

to

the

trial

court’s

Henderson v. United States, 133 S. Ct. 1121, 1124
3

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(2013)

(citing

(1993)).

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United

States

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v.

Olano,

507

U.S.

725,

731

Federal Rule of Criminal Procedure 52(b) creates an

exception to the normal rule, providing “[a] plain error that
affects substantial rights may be considered even though it was
not brought to the court’s attention.”

Fed. R. Crim. P. 52(b).

When a defendant does not seek to withdraw his guilty
plea in the district court, we review any claims that the court
erred at his guilty plea hearing for plain error.

United States

v. Martinez, 277 F.3d 517, 524, 527 (4th Cir. 2002).

It is the

defendant’s burden to show (1) error; (2) that was plain; (3)
affecting

his

substantial

rights;

and

(4)

exercise our discretion to notice the error.
532.

that

we

should

See id. at 529,

To show prejudice, he “must show a reasonable probability

that, but for the error, he would not have entered the plea.”
United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
We have reviewed the record and conclude that Jarreau
fails to show any plain error by the district court, and his
guilty plea was knowing and voluntary based on a totality of the
circumstances.

Jarreau pled guilty because he was guilty, and

he received a substantial benefit from his plea agreement.

His

decision to plead guilty was a voluntary and intelligent choice
among the alternative choices of action open to him.
Counsel next questions whether Jarreau’s appeal waiver
was knowing and voluntary.

“Plea bargains rest on contractual
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principles, and each party should receive the benefit of its
bargain.”

United States v. Blick, 408 F.3d 162, 173 (4th Cir.

2005) (citation and internal quotations omitted).

“A defendant

may waive the right to appeal his conviction and sentence so
long as the waiver is knowing and voluntary.”

United States v.

Davis, 689 F.3d 349, 354 (4th Cir. 2012) (citing United States
v. Marin, 961 F.2d 493, 496 (4th Cir. 1992)).

We review the

validity of an appeal waiver de novo, and we “will enforce the
waiver if it is valid and the issue appealed is within the scope
of the waiver.”

Id. (citing Blick, 408 F.3d at 168).

While the

validity of an appeal waiver often depends on the adequacy of
the plea colloquy, the issue ultimately depends on the totality
of the circumstances.

Blick, 408 F.3d at 169.

We have reviewed the plea agreement and the Rule 11
hearing, and we conclude that Jarreau’s appellate waiver was
knowing and voluntary.

The district court questioned Jarreau

concerning the waiver, and Jarreau confirmed his understanding.
However, because the Government has not moved to dismiss the
appeal, we decline to enforce the waiver in this appeal.
Finally, counsel questions whether Jarreau’s sentence
was reasonable.

We review a sentence for reasonableness using

an abuse of discretion standard.

United States v. McManus, 734

F.3d 315, 317 (4th Cir. 2013) (citing Gall v. United States, 552
U.S. 38, 51 (2007)).

First, we consider whether the district
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committed

any

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significant

procedural

error,

such

as

improperly calculating the Guidelines range, failing to consider
the

sentencing

factors

under

18

U.S.C.

§ 3553(a)

failing to adequately explain the sentence.

(2012),

or

United States v.

Allmendinger, 706 F.3d 330, 340 (4th Cir.), cert. denied, 133 S.
Ct. 2747 (2013).
then

consider

account

the

If the sentence is procedurally reasonable, we
its

substantive

totality

of

the

reasonableness,
circumstances

deference to the district court’s decision.
51.

taking

and

into

giving

due

Gall, 552 U.S. at

We presume that a sentence within or below a properly

calculated Guidelines range is substantively reasonable.

United

States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012).
In sentencing, the district court must first correctly
calculate the defendant’s sentencing range under the Sentencing
Guidelines.

Allmendinger, 706 F.3d at 340.

The court is next

required to give the parties an opportunity to argue for what
they

believe

is

an

appropriate

sentence,

and

the

court

must

consider those arguments in light of the factors set forth in 18
U.S.C. § 3553(a) (2012).
court

must

make

and

Id.

place

When rendering a sentence, the

on

the

record

an

individualized

assessment based on the particular facts of the case.

United

States v. Carter, 564 F.3d 325, 328, 330 (4th Cir. 2009).

In

explaining the sentence, the “sentencing judge should set forth
enough to satisfy the appellate court that he has considered the
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parties’ arguments and has a reasoned basis for exercising his
own legal decisionmaking authority.”

Rita v. United States, 551

U.S. 338, 356 (2007).

While a court must consider the statutory

factors

its

and

reference

§

explain
3553(a)

or

sentence,

discuss

it

every

need
factor

not
on

explicitly
the

record.

United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).
We

have

reviewed

the

record

and

conclude

that

Jarreau’s sentence is procedurally and substantively reasonable,
and the district court did not abuse its discretion in imposing
the

sentence.

The

district

court

properly

calculated

his

advisory Guidelines range and reasonably determined a sentence
of 96 months in prison followed by supervised release for life
was appropriate in his case.

The court granted the Government’s

motion for a downward departure based on Jarreau’s substantial
assistance and sentenced him below his Guidelines range of 135
to 168 months.
Government

The court declined to sentence him as low as the

recommended,

but

it

adequately

explained

that

the

sentence was appropriate based on Jarreau’s criminal history and
the need to protect the public from his drug dealing.
In accordance with Anders, we have reviewed the entire
record

and

Accordingly,
court

have
we

requires

found
affirm

that

no
the

counsel

meritorious
district
inform

issues

for

court’s

judgment.

his

her

appeal.

or

client,

This
in

writing, of his or her right to petition the Supreme Court of
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the United States for further review.
that

a

petition

be

filed,

but

If the client requests

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
before

contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

8