US v. Sikeo Butler

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:14-cr-00400-HMH-6. Copies to all parties and the district court. [999712374]. [15-4201, 15-4205, 15-4215]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4201

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SIKEO HARVELL BUTLER, a/k/a Keo,
Defendant - Appellant.

No. 15-4205

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM ONEAL WINFREY, a/k/a Joe,
Defendant - Appellant.

No. 15-4215

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.

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TERRANCE EDWARD STEWART, a/k/a Cheddar,
Defendant - Appellant.

Appeals from the United States District Court for the District
of South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District
Judge.
(6:14-cr-00400-HMH-6;
6:14-cr-00400-HMH-1;
6:14-cr-00400-HMH-4)

Submitted:

November 30, 2015

Decided:

December 4, 2015

Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.

No. 15-4201 affirmed; No. 15-4205 affirmed in part and dismissed
in part; No. 15-4215 affirmed by unpublished per curiam opinion.

T. Kirk Truslow, North Myrtle Beach, South Carolina; Derek J.
Enderlin, ROSS & ENDERLIN, PA, Greenville, South Carolina; Jill
E.M. HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston, South
Carolina, for Appellants.
William N. Nettles, United States
Attorney, William J. Watkins, Jr., Assistant United States
Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Sikeo Harvell Butler, William Oneal Winfrey, and Terrance
Edward

Stewart

appeal

their

convictions

for

conspiracy

to

possess with intent to distribute heroin and methamphetamine, in
violation
Winfrey

of

also

21

U.S.C.

challenges

§§ 841(a)(1),
his

(b)(1)(A),

conviction

of

being

846
a

(2012).
felon

in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
(2012).

The Appellants raise various challenges to their Fed.

R. Crim. P. 11 plea colloquies and sentences.

For the reasons

that follow, we dismiss in part Winfrey’s appeal as it relates
to

his

sentence,

and

affirm

the

remainder

of

the

district

court’s judgments as to all three Appellants.
I.
Butler asserts that his Fed. R. Crim. P. 11 plea colloquy
was inadequate because the district court did not fully explain
the offense of conspiracy and did not ensure that a sufficient
factual basis supported his guilty plea.

Prior to accepting a

guilty plea, a court must conduct a plea colloquy in which it
informs

the

defendant

of,

and

determines

that

the

defendant

understands, the nature of the charge to which he is pleading
guilty, in addition to other information.

Fed. R. Crim. P.

11(b)(1); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir.
1991).

The district court also must ensure that the defendant’s

plea is voluntary, supported by a sufficient factual basis, and
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not the result of force, threats, or promises not contained in
the plea agreement.

Fed. R. Crim. P. 11(b)(2)-(3); DeFusco, 949

F.2d at 119-20.
Because Butler did not move to withdraw his guilty plea in
the district court or otherwise preserve any allegation of Rule
11 error, the plea colloquy is reviewed for plain error.
States

v.

Sanya,

774

F.3d

812,

815

(4th

Cir.

United

2014).

To

establish plain error, Butler must show: (1) there was error;
(2)

the

error

substantial

was

plain;

rights.

and

Henderson

1121, 1126-27 (2013).

(3)
v.

the

error

United

affected

States,

133

S.

his
Ct.

In the guilty plea context, a defendant

establishes the third factor by showing a reasonable probability
that he would not have pled guilty but for the Rule 11 error.
United States v. Davila, 133 S. Ct. 2139, 2147 (2013).
Butler
understood

confirmed
and

was

the

during
pleading

indictment,”

the

Rule

guilty
which

11

to

colloquy

“the

adequately

that

he

conspiracy

as

described

the

described

in

offense.

Additionally, Butler’s written plea agreement stated

that he was pleading guilty to count one of the indictment, and
during the colloquy, he confirmed that he understood the plea
agreement
cannot

and

show

had
that

reviewed
the

it

court

with
plainly

colloquy.

4

his

attorney.

erred

in

its

Thus,

he

Rule

11

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Butler also contends that his plea was not supported by a
sufficient factual basis because he denied being a member of the
“Detroit Boys” and instead claimed that he only supplied drugs
to one codefendant.
conspiracy.

Thus, he argues that he cannot be guilty of

This argument is without merit.

Although Butler

asserts he only sold to one codefendant, he acknowledged that he
provided that codefendant with over a kilogram of heroin.
defendant

be

part

of

a

conspiracy

members of the conspiracy.
360, 367 (4th Cir. 2010).

without

knowing

all

A

other

United States v. Green, 599 F.3d
Additionally, a defendant’s sale of a

large quantity of drugs “supports an inference or presumption
that

appellant

knew

that

he

was

a

part

of

extended beyond his individual participation.”

a

venture

which

United States v.

Brown, 856 F.2d 710, 712 (4th Cir. 1988) (per curiam) (internal
quotation marks and brackets omitted).

Thus, Butler also fails

to establish plain error regarding his factual basis argument.
Finally, we note that, even if he could establish plain
error, Butler has not shown that his substantial rights were
affected, since he does not actually contend that, but for these
alleged errors at the Rule 11 hearing, he would not have pled
guilty.
II.
Winfrey argues that his counsel had a conflict of interest
because he represented both Winfrey and his brother, Laron, at
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their Rule 11 hearing.
conclusively

appears

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Unless an attorney’s ineffectiveness

on

the

face

of

the

record,

ineffective

assistance claims are not generally addressed on direct appeal.
United States v. Galloway, 749 F.3d 238, 241 (4th Cir.), cert.
denied, 135 S. Ct. 215 (2015).

Instead, such claims should be

raised, if at all, in a 28 U.S.C. § 2255 (2012) motion, in order
to permit sufficient development of the record.

United States

v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
“[W]henever
representation
Holloway

v.

a

over

trial

court

timely

objection

Arkansas,

435

U.S.

improperly

475,

reversal
488

requires
is

joint

automatic.”

(1978).

Absent

an

objection or the presence of “special circumstances” indicating
that the court should know of a conflict of interest, “the court
need

not

initiate

representation.

an

inquiry”

into

the

propriety

of

joint

Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).

In order to succeed on an ineffective assistance claim arising
from

joint

representation

where

no

objections

or

special

circumstances existed, the defendant must show “that his counsel
labored

(1)

under

an

actual

conflict

(2) adversely affected the representation.”
F.3d 257, 267 (4th Cir. 2005).

of

interest

that

Jones v. Polk, 401

“A defendant has established an

adverse effect if he proves that his attorney took action on
behalf of one client that was necessarily adverse to the defense
of another or failed to take action on behalf of one because it
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would adversely affect another.”

Mickens v. Taylor, 240 F.3d

348, 360 (4th Cir. 2001), aff’d, 535 U.S. 162 (2002).
Winfrey did not object to the joint representation and his
contention

that

recitations

his

was

dispute

equivalent

of

the

to

an

circumstance is legally unsupported.

Government’s
objection

or

factual
special

Further, despite Winfrey’s

contention that Laron’s interests conflicted with his own, the
record reveals that Laron supported Winfrey’s version of events
rather than opposing it.
As

part

of

his

conflict

of

interest

claim,

Winfrey

fleetingly argues that the district court’s colloquy did not
comply with Fed. R. Crim. P. 11.

Winfrey’s Rule 11 claim is

reviewed for plain error because he did not seek to withdraw his
plea.
that

Sanya, 774 F.3d at 815.
the

court

conspiracy.
basis,

failed

to

We reject Winfrey’s argument

adequately

explain

the

crime

of

As to Winfrey’s challenge to the plea’s factual

Winfrey

admitted,

establish conspiracy.

on

the

record,

facts

sufficient

to

Thus, we also conclude this argument is

without merit.
Finally,
procedurally

Winfrey
and

contends

substantively

that

his

unreasonable

sentence

because

the

was
court

upwardly varied by 72 months after finding that Winfrey’s three
children each tested positive for drugs.

7

The Government invokes

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Winfrey’s appellate waiver, but Winfrey contends the waiver is
invalid for various reasons.
“A defendant may waive the right to appeal his conviction
and sentence so long as the waiver is knowing and voluntary.”
United States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013)
(internal

quotation

marks

omitted).

We

reject

Winfrey’s

arguments and conclude that the waiver is valid and that his
claims fall within its scope.

Thus, we dismiss Winfrey’s appeal

as it pertains to his sentence.
III.
Stewart

contends

substantively

his

sentence

unreasonable.

reasonableness,
standard.”

that

applying

We

“a

is

review

deferential

procedurally
a

sentence

and
for

abuse-of-discretion

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

In

determining whether a sentence is procedurally reasonable, we
consider

whether

the

district

court

properly

calculated

the

Sentencing Guidelines range, gave the parties an opportunity to
argue

for

§ 3553(a)

an

appropriate

(2012)

selected sentence.

sentence,

factors,

and

considered

sufficiently

the

18

U.S.C.

explained

the

Id. at 49-51.

“Regardless of whether the district court imposes an above,
below,

or

within-Guidelines

record

an

individualized

sentence,

assessment

facts of the case before it.”

it

based

must
on

place
the

on

the

particular

United States v. Carter, 564 F.3d
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325, 330 (4th Cir. 2009) (internal quotation marks omitted).
While the “individualized assessment need not be elaborate or
lengthy, . . .
particular

it

case

must
at

reasons

a

rationale

(internal quotation marks omitted).
a

given

permit

the

Id.

for

to

to

and

articulated

adequate

tailored

hand

appellate review.”
The

provide

sentence

meaningful

need

not

be

“couched in the precise language of § 3553(a),” so long as the
“reasons

can

be

matched

to

a

factor

appropriate

for

consideration . . . and [are] clearly tied [to the defendant’s]
particular situation.”
658 (4th Cir. 2007).

United States v. Moulden, 478 F.3d 652,
Moreover, the sentencing court “need not

robotically tick through § 3553(a)’s every subsection”; it only
must provide “some indication” that it considered the § 3553(a)
factors

with

respect

to

the

defendant

before

it

and

also

considered any nonfrivolous arguments raised by the parties at
sentencing.

United States v. Montes-Pineda, 445 F.3d 375, 380

(4th Cir. 2006).
If we find no procedural error, we examine the substantive
reasonableness
circumstances.”

of

a

sentence

under

Gall, 552 U.S. at 51.

“the

totality

of

the

When the district court

imposes a sentence above the applicable Guidelines range, we
consider

“whether

the

sentencing

court

acted

reasonably

both

with respect to its decision to impose such a sentence and with
respect

to

the

extent

of

the

divergence
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from

the

sentencing

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range.”
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United States v. Washington, 743 F.3d 938, 944 (4th

2014)

(internal

quotation

marks

omitted).

“A

major

departure from the advisory range should be supported by a more
significant justification than a minor one.”

United States v.

Morace, 594 F.3d 340, 346 (4th Cir. 2010) (internal quotation
marks omitted).

We give due deference to the sentencing court’s

decision because that court “has flexibility in fashioning a
sentence outside of the Guidelines range,” and need only “set
forth

enough

to

satisfy

the

appellate

court

that

it

has

considered the parties’ arguments and has a reasoned basis” for
its decision.

United States v. Diosdado-Star, 630 F.3d 359, 364

(4th Cir. 2011) (alteration omitted).
Because

we

conclude

that

the

district

court

issued

a

variance rather than a departure, Stewart was not entitled to
receive advance notice under Fed. R. Crim. P. 32(h), so his
challenge in this regard is meritless.

We also reject Stewart’s

contention that the court failed to state the reason for its
upward

variance

in

open

court.

Although

the

court

did

not

explicitly refer to the subsections of § 3553(a) in explaining
its sentence, the court nonetheless stated reasons consistent
with

the

sentencing

statutory
“can

be

factors.
matched

The
to

reasoning

[each

factor[s] appropriate for consideration.”
658.
10

of

articulated

these

at

§ 3553(a)]

Moulden, 478 F.3d at

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Stewart also claims that the court’s failure to address
whether

his

potential
conduct
Because

federal

state
was

sentence

sentence

for

procedurally

Stewart

failed

would

to

his

and
raise

run

concurrent

post-guilty

plea

substantively
the

question

with

his

criminal

unreasonable.
of

concurrent

sentencing in the district court, we review for plain error.
United States v. Obey, 790 F.3d 545, 549-50 (4th Cir. 2015).
Stewart fails to cite any authority for the proposition that the
district court must state whether it intends that the sentences
run

consecutively

Government
terms

of

notes,

or
the

concurrently.
statutory

imprisonment

imposed

Additionally,

default
at

is

that

different

as

the

“[m]ultiple
times

run

consecutively unless the court orders that the terms are to run
concurrently.”

18 U.S.C. § 3584(a) (2012).

Accordingly, we

conclude that Stewart has not demonstrated that his sentence is
unreasonable on this basis.
Finally,

Stewart

contends

that

his

sentence

is

substantively unreasonable because the removal of his credit for
acceptance of responsibility, coupled with the 24-month upward
variance, amounted to “double punishment.”
that

the

court

in

this

particular

case

He also contends
over-relied

on

one

particular fact, the post-plea criminal conduct, in making these
two adjustments to his sentence.

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As to the double punishment argument, we find no basis to
conclude that the district court’s decision is impermissible and
further note that the district court’s sentencing determination
is entitled to deference.

United States v. Jeffrey, 631 F.3d

669, 679-80 (4th Cir. 2011).

As to Stewart’s argument that his

sentence was substantively unreasonable because the court overrelied on a single fact, we conclude that Stewart’s reliance on
United

States

misplaced.

In

v.

Engle,

that

592

case,

F.3d

we

495

found

(4th

that

Cir.

the

2010),

district

is

court

overrelied on one § 3553(a) factor in determining its sentence.
Id. at 504-05.

Here, Stewart refers to the court’s reliance on

one

postplea

fact—his

multiple

§ 3553(a)

criminal

factors.

activity—which

Given

Stewart’s

implicates
misdirected

argument and the deference accorded to the district court in
sentencing determinations, we conclude that Stewart’s sentence
is neither procedurally nor substantively unreasonable.
Accordingly, we dismiss Winfrey’s appeal of his sentence
and affirm the district court’s judgments in all other respects.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

No. 15-4201 AFFIRMED
No. 15-4205 AFFIRMED IN PART AND
DISMISSED IN PART
No. 15-4215 AFFIRMED
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