US v. Claude Verbal, II

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00114-CCE-1,1:13-cr-00121-CCE-1 Copies to all parties and the district court/agency. [999569481].. [14-4788]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4788

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLAUDE ARTHUR VERBAL, II,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:14-cr-00114-CCE-1; 1:13-cr-00121-CCE-1)

Submitted:

April 13, 2015

Decided:

April 22, 2015

Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Robert L. McClellan, IVEY, MCCLELLAN, GATTON & TALCOTT, L.L.P.,
Greensboro, North Carolina, for Appellant.
Frank Phillip
Cihlar, Gregory Victor Davis, Joseph Brian Syverson, Tax
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Claude
defraud

Arthur

the

Verbal,

United

II,

States,

pled

in

guilty

violation

to

of

conspiracy

18

U.S.C.

to

§ 371

(2012), aiding and assisting in the preparation of a false tax
return, in violation of 26 U.S.C. § 7206(2) (2012), health care
fraud, in violation of 18 U.S.C. §§ 2, 1347(a)(2) (2012), and
money

laundering,

(2012).

in

violation

of

18

U.S.C.

§§ 2,

1957(a)

The district court calculated Verbal’s Guidelines range

at 108 to 135 months’ imprisonment, U.S. Sentencing Guidelines
Manual (2013), and sentenced Verbal to 135 months’ imprisonment.
On appeal, counsel has filed a brief pursuant to Anders v.
California,

386

U.S.

738

(1967),

stating

that

there

are

no

meritorious issues for appeal, but raising as issues for review
whether

the

Verbal’s
sentence.

district

guilty

plea

court
and

reversibly

abused

its

erred

in

discretion

accepting

in

imposing

Verbal was informed of his right to file a pro se

supplemental brief, but he has not done so.
not file a brief.
Because

The Government did

We affirm.

Verbal

did

not

move

in

the

district

court

to

withdraw his guilty plea, the adequacy of the Fed. R. Crim. P.
11 hearing is reviewed for plain error only.
Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002).

United States v.
To demonstrate

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

was

plain;

and

(3)

the

error
2

affected

his

substantial

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rights.
the

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

guilty

plea

context,

a

defendant

meets

his

In

burden

to

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

but

for

the

district

court’s

Rule

11

omissions.

United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).
Our review of the transcript of the guilty plea hearing
leads

us

complied

to

conclude

guilty

with

the

plea.

district

knowingly

mandates

the
of

Critically,

court

independent

that

ensured

basis
and

in

voluntarily

consequences.

Rule

the

that

fact

district

plea

that

with

was

Verbal

an

substantially

accepting
reveals

Verbal’s
that

supported

by

the
an

entered

the

plea

understanding

of

the

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

(4th Cir. 1991).

Any omissions by the district court did not

affect Verbal's substantial rights.
343.

in

transcript

the

and

11

court

See Massenburg, 564 F.3d at

Accordingly, Verbal has not met his burden under plain-

error review to show that the district court’s acceptance of
his guilty plea warrants reversal.
Turning

to

reasonableness
standard.”
This

“under

a

sentence,

we

deferential

review

it

for

abuse-of-discretion

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

review

procedural

Verbal’s

entails

and

appellate

substantive

consideration

reasonableness
3

of

of

both

the

the

sentence.

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Id. at

51.

consider

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determining

procedural

In

whether

defendant’s

the

advisory

district

court

Guidelines

reasonableness,

properly

range,

gave

calculated
the

we
the

parties

an

opportunity to argue for an appropriate sentence, considered the
18 U.S.C. § 3553(a) (2012) 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,

sentence

within

presumptively

a

properly

substantively

calculated

into

Id. at 51.

account the totality of the circumstances.”

“tak[ing]

Any

Guidelines

reasonable.

United

range

is

States

v.

Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421

(2014).

Such

a

presumption

can

only

be

rebutted

by

a

showing that the sentence is unreasonable when measured against
the § 3553(a) factors.

Id.

In this case, the district court correctly calculated and
considered the advisory Guidelines range, heard argument from
counsel, and heard allocution from Verbal.

The court explained

that the 135-month sentence was warranted in light of the nature
and circumstances of Verbal’s offense conduct, his history and
characteristics, and the need for the sentence to deter criminal
conduct.
any

18 U.S.C. § 3553(a)(1), (2)(B).

grounds

to

rebut

the

presumption
4

Verbal does not offer
on

appeal

that

his

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within-Guidelines

sentence

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is

substantively

reasonable.

Accordingly, we conclude that the district court did not abuse
its discretion in sentencing Verbal.
Finally, in accordance with Anders, we have reviewed the
remainder

of

the

record

in

this

meritorious issues for appeal.
court’s

judgment.

This

case

and

have

found

no

We therefore affirm the district

court

requires

that

counsel

inform

Verbal, in writing, of the right to petition the Supreme Court
of the United States for further review.
that

a

petition

be

filed,

but

counsel

If Verbal requests

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 Verbal.
We dispense with oral argument because the facts and legal
contentions

are

adequately

presented

in

the

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

5