US v. Elerico Howard

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:14-cr-00223-H-1. Copies to all parties and the district court. [999843438]. [15-4424]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4424

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ELERICO
Duran,

DURAN

HOWARD,

a/k/a

Rico,

a/k/a

Freedom,

a/k/a

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Malcolm J. Howard,
Senior District Judge. (5:14-cr-00223-H-1)

Submitted:

May 25, 2016

Decided:

June 6, 2016

Before DUNCAN and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North
Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:
Elerico

Duran

Howard

pled

guilty,

pursuant

to

a

plea

agreement, to conspiracy to possess with intent to distribute
500 grams or more of cocaine and an unspecified quantity of
marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2012),
and possession of a firearm by a felon, in violation of 18
U.S.C. §§ 922(g)(1), 924 (2012).
Howard

to

Appellate

144

months’

counsel

California,

386

meritorious

has

U.S.

issues

The district court sentenced

imprisonment,
filed

738

for

a

and

brief

(1967),

appeal,

now

pursuant

stating

but

he

to

that

appeals.
Anders v.

there

questioning

are

whether

no
the

sentence imposed was procedurally and substantively reasonable
and whether plea counsel was ineffective.

Howard was notified

of his right to file a pro se brief but has elected not to do
so.

We affirm.
We

review

deferential

the

reasonableness

abuse-of-discretion

of

a

sentence

standard.”

States, 552 U.S. 38, 41 (2007).

Gall

“under
v.

United

This entails review of the

procedural and substantive reasonableness of the sentence.
at 51.

a

Id.

“Procedural errors include ‘failing to calculate (or

improperly

calculating)

Guidelines

as

mandatory,

the

Guidelines

failing

to

range,

consider

treating
the

§

the

3553(a)

factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence—including
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an explanation for any deviation from the Guidelines range.’”
United

States

v.

Carter,

564

F.3d

325,

328

(4th

Cir.

2009)

(quoting Gall, 552 U.S. at 51).

Only if the sentence is free of

“significant

do

procedural

error”

we

review

the

substantive

reasonableness of the sentence, accounting for “the totality of
the circumstances.”
a

properly

Gall, 552 U.S. at 51.

calculated

Guidelines

range

Any sentence within
is

presumptively

substantively reasonable; this presumption is rebutted only “by
demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors.”

United States v. Dowell, 771

F.3d 162, 176 (4th Cir. 2014).
Because Howard failed to object to the sentence imposed, it
is

reviewed

for

plain

error

only.

United

Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 2015).

States

v.

“To satisfy

plain error review, the defendant must establish that: (1) there
is a sentencing error; (2) the error is plain; and (3) the error
affects his substantial rights.”

Id.

occurred,

error

we

will

not

cure

the

Even if a plain error
unless

it

“seriously

affects the fairness, integrity or public reputation of judicial
proceedings.”

Id.

Our review of the record confirms that the sentence imposed
was

both

procedurally

and

substantively

reasonable.

The

district court properly calculated the Guidelines range, allowed
counsel an adequate opportunity to argue on Howard’s behalf, and
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afforded Howard his right of allocution.
court’s

explanation

for

the

sentence

Although the district
was

brief,

given

the

straightforward and conceptually simple nature of the arguments
and

the

within-Guidelines

sentence

explanation was sufficient.

imposed,

the

court’s

See United States v. Hernandez, 603

F.3d 267, 271-72 (4th Cir. 2010).
As to the substantive reasonableness of the sentence, the
record

does

not

reveal

any

factors

that

would

overcome

the

presumption of reasonableness afforded to the within-Guidelines
sentence
court

imposed.

erred

kilograms
waived

in

of

this

Although

attributing

marijuana
argument

to
by

Howard
more

him,

argues

than
we

the

that

it

district

equivalent

conclude

withdrawing

the

that

below.

of

1000

Howard
See

has

United

States v. Robinson, 744 F.3d 293, 298-99 (4th Cir. 2014).
Finally,

Howard’s

claim

of

ineffective

assistance

of

counsel is only cognizable on direct appeal if it conclusively
appears

on

the

record

that

counsel

was

ineffective.

United

States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014).

To

succeed on a claim of ineffective assistance of counsel, Howard
must

show

objective

that:

(1)

standard

“counsel’s

of

representation

reasonableness”;

performance prejudiced the defense.”
466 U.S. 668, 687-88 (1984).
to

satisfy

the

second

prong

and

fell

(2) “the

below

an

deficient

Strickland v. Washington,

In the context of a guilty plea,
a
4

defendant

must

establish

a

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reasonable probability that, but for counsel’s errors, he would
have “insisted on going to trial.”

Hill v. Lockhart, 474 U.S.

52,

not

59

(1985).

The

record

assistance of counsel.

does

establish

ineffective

Therefore, this claim is not cognizable

on direct appeal and should be raised, if at all, in a 28 U.S.C.
§ 2255 (2012) motion.
In

accordance

with

Anders,

we

have

reviewed

the

entire

record in this case and have found no meritorious issues for
appeal.

We therefore affirm Howard’s convictions and sentence.

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

If Howard 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 Howard.
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

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