US v. Lance Richardson Pagan

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cr-00258-RJC-8 Copies to all parties and the district court/agency. [999788599].. [15-4492]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4492

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LANCE RICHARDSON PAGAN,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., District Judge. (3:13-cr-00258-RJC-8)

Submitted:

January 19, 2016

Decided:

April 5, 2016

Before KEENAN, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Peter Wood, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
Lance

Richardson

Pagan

pled

guilty

pursuant

to

a

plea

agreement to conspiracy to distribute and possess with intent to
distribute 280 grams or more of cocaine base and 5 kilograms or
more of cocaine, in violation of 21 U.S.C. § 846 (2012).

The

district

the

court

calculated

Pagan’s

Guidelines

range

under

U.S. Sentencing Guidelines Manual (2014) at 70 to 87 months’
imprisonment and sentenced Pagan to 84 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 district court reversibly erred in accepting Pagan’s
guilty

plea,

whether

trial

counsel

rendered

ineffective

assistance, whether the district court abused its discretion in
imposing

sentence,

misconduct.

not

seek

agreement. *

whether

the

prosecution

engaged

in

Pagan has filed a pro se supplemental brief raising

several issues.
does

and

The Government elected not to file a brief and
to

enforce

the

appeal

waiver

in

Pagan’s

plea

We affirm.

*

Because the Government fails to assert the waiver as a bar
to the appeal, we may consider the issues raised by counsel and
Pagan and conduct an independent review of the record pursuant
to Anders.
United States v. Poindexter, 492 F.3d 263, 271
(4th Cir. 2007).

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Because

Pagan

did

not

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move

in

the

district

court

to

withdraw his guilty plea, the acceptance of his guilty plea is
reviewed

for

plain

277 F.3d

517,

error

524-26

(4th

only.
Cir.

2002).

error, a defendant must show:
error

was

rights.
the

plain;

and

(3)

the

United

States
To

v.

Martinez,

demonstrate

plain

(1) there was error; (2) the
error

affected

his

substantial

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

guilty

plea

context,

a

defendant

meets

his

burden

In
to

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

but

omissions.

for

the

United

district
States

v.

court’s

Fed.

Massenburg,

R.

564

Crim.
F.3d

P.

337,

11
343

(4th Cir. 2009).
Our review of the transcript of the guilty plea hearing
leads us to conclude that the magistrate judge’s omissions did
not

affect

Pagan’s

substantial

rights.

Additionally,

the

transcripts of the guilty plea and sentencing hearings reveal
that the magistrate judge and district court ensured that the
plea was supported by an independent basis in fact and that
Pagan

entered

the

plea

knowingly

understanding of the consequences.

and

voluntarily

with

an

Accordingly, we discern no

plain error in the district court’s acceptance of Pagan’s guilty
plea.

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

(4th Cir. 1991).
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Next,

we

decline

assistance

of

counsel.

conclusively

appears

to

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reach

Pagan’s

Unless

on

the

an

face

claim

attorney’s
of

the

of

ineffective

ineffectiveness

record,

ineffective

assistance claims generally are not addressed on direct appeal.
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).
Because the record does not conclusively establish ineffective
assistance

by

inappropriate

Pagan’s
for

trial

resolution

counsel,
on

direct

we

deem

this

appeal.

See

claim
United

States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
Turning

to

reasonableness
standard.”
This

84-month

“under

a

sentence,

deferential

we

review

it

for

abuse-of-discretion

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

review

procedural

Pagan’s

entails

and

appellate

substantive

consideration

reasonableness

of

of

both

the

the

sentence.

court

properly

Id. at 51.
After

determining

whether

the

district

calculated the defendant’s advisory Guidelines range and gave
the parties an opportunity to argue for an appropriate sentence,
we consider whether the district court considered the 18 U.S.C.
§ 3553(a)

(2012)

factors

and

any

arguments

presented

by

the

parties, 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 the substantive reasonableness of the sentence, “tak[ing]
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into account the totality of the circumstances.”

Id. at 51.

Any sentence within or below a properly calculated Guidelines
range

is

presumptively

substantively

reasonable.

United

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 did not reversibly err in
calculating

the

Guidelines

range

and

properly

from counsel and allocution from Pagan.

heard

argument

The court explained

that the 84-month sentence was warranted in light of Pagan’s
history

and

characteristics

and

the

nature

of

his

offense

conduct and the need for the sentence to promote respect for the
law, provide just punishment, afford adequate deterrence, and
protect the public from further crimes by Pagan.

Pagan does not

offer any grounds to rebut the presumption on appeal that his
within-Guidelines

sentence

is

substantively

reasonable.

Accordingly, we conclude that the district court did not abuse
its discretion in sentencing Pagan.
Next, we review for plain error a prosecutorial misconduct
claim not raised or presented in the district court.
States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005).

United

To succeed

on a claim of prosecutorial misconduct, a defendant must show
that the prosecutor engaged in improper conduct and that such
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conduct “prejudiced the defendant’s substantial rights so as to
deny the defendant a fair trial.”
record

and

find

no

improper

Id.

We have reviewed the

conduct

on

the

part

of

the

prosecutor that prejudiced Pagan.
Finally, in accordance with Anders, we have reviewed the
remainder

of

supplemental
appeal.

We

the

record

brief

and

therefore

in

have
affirm

this
found
the

case
no

and

Pagan’s

meritorious

district

court’s

pro

issues

se
for

judgment.

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

If Pagan requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then
counsel

may

move

representation.

in

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Pagan.
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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