US v. Samuel Hill


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:14-cr-00206-F-1 Copies to all parties and the district court/agency. [1000047620].. [15-4700]

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Appeal: 15-4700 Doc: 63 Filed: 03/23/2017 Pg: 1 of 6 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4700 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SAMUEL WAYNE HILL, a/k/a Sam Hill, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:14-cr-00206-F-1) Submitted: March 14, 2017 Decided: March 23, 2017 Before MOTZ, AGEE, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Cindy H. Popkin-Bradley, Raleigh, North Carolina, for Appellant. John Stuart Bruce, United States Attorney, Jennifer P. MayParker, First Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-4700 Doc: 63 Filed: 03/23/2017 Pg: 2 of 6 PER CURIAM: Samuel Wayne Hill pled guilty, pursuant to a written plea agreement, to conspiracy to manufacture, distribute, and possess with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2012). court sentenced Hill to 480 months’ The district imprisonment, which was within his Sentencing Guidelines range of 360 months to life. The court also imposed a lifetime term of supervised release, which was an upward variance from the Guidelines range of five years. In his opening brief on appeal, Hill argued that the district court committed procedural sentencing error by failing to explain adequately the 480-month sentence, to address his arguments for a downward variance, and to explain the reasons supporting release. end of the upward variance in the term of supervised Hill also contended that the court’s comments at the the sentencing hearing demonstrated judicial bias in violation of due process. We previously granted the Government’s motion to dismiss this appeal, in part, based on the waiver-of-appellate-rights provision included in Hill’s plea agreement, pursuant to which Hill waived his right to appeal a within-Guidelines sentence. We ruled that Hill’s acceptance of this waiver was knowing and 2 Appeal: 15-4700 Doc: 63 Filed: 03/23/2017 Pg: 3 of 6 voluntary and that the first two appellate issues fell within the scope of the waiver. the reasonableness of However, neither Hill’s challenge to his upward variant term of supervised release nor his due process claim is foreclosed by the appellate waiver. We address each of these claims in turn. First, pursuant to Rule 28 of the Federal Rules of Appellate Procedure, the argument section of the brief “must contain . . . appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” Fed. R. App. P. 28(a)(8)(A). Issues not raised in a party’s opening brief are waived. United States v. Bartko, 728 F.3d 327, 335 (4th Cir. 2013). To be sure, Hill’s opening brief identifies the lifetime term of supervised release as part of the issue on appeal. 1 But the argument portion of the brief frames the claimed procedural sentencing either the error in 480-month terms of the custodial court’s sentence failure or rejecting the requested downward variance. comes to asserting an argument 1 relevant its to explain reasons for The closest Hill to the supervised Specifically, the statement of the argument is as follows: “Whether the district court committed procedural error when it did not adequately explain why it imposed 480 months as the term of imprisonment, why it rejected Mr. Samuel Hill’s arguments for a variance, and why it ordered a term of life for supervised release.” (Appellant’s Br. (ECF No. 35) at 20). 3 Appeal: 15-4700 Doc: 63 Filed: 03/23/2017 Pg: 4 of 6 release term is his statement that, “[i]t was also a violation of the law not to give reasons for rejecting a request for downward variance and upwardly depart on supervised release and use key words and phrases (Appellant’s Br. at 31). to justify the upward departure.” This simply is not enough to raise the issue sufficiently to entitle Hill to appellate review by this court. See Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653 n.7 (4th Cir. 2006) (holding that a single sentence in an opening brief asserting a district court’s alleged error “is insufficient to raise on appeal any merits-based challenge to the district court’s ruling”). We thus hold that Hill has waived appellate review of this particular claim. 2 2 Even if it were not waived, Hill’s challenge to the district court’s explanation for the supervised release term would not garner Hill any relief. Because Hill did not ask for any specific term of supervised release and did not object to the selected term of supervised release, we would review Hill’s procedural reasonableness challenge only for plain error. United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). To establish plain error, Hill must show that (1) the district court erred, (2) the error is clear or obvious, and (3) the error affected his substantial rights, meaning that it “affected the outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725, 732–34 (1993). Our review of the record satisfies us that there is no such plain error here. Prior to sentencing Hill, the district court identified and addressed itself to Hill’s criminal history, his personal circumstances (including his ongoing drug addiction and early exposure to the culture of methamphetamine production), and Hill’s significant involvement with the long-lasting methamphetamine production operation that was underlying the charged conspiracy. The court concluded by observing that the (Continued) 4 Appeal: 15-4700 Doc: 63 Filed: 03/23/2017 Finally, then, there is Pg: 5 of 6 Hill’s claim that the district court violated due process when, at the end of the sentencing hearing, it made two statements regarding the societal harms caused by cooking methamphetamine. While the district court’s strongly worded comments conveyed a disdain for methamphetamine cooks and the serious, long-lasting, detrimental effects of methamphetamine on a community, the challenged comments do not suggest bias amounting to a due process violation. comments reflected methamphetamine the epidemic court’s and its frustration consideration Rather, the with of the Hill’s criminal conduct — specifically, that Hill participated in the conspiracy for four years, distributed nearly three kilograms of methamphetamine in his community, cooked in multiple locations where on one occasion an explosion occurred and resulted in serious injuries, and remained addicted to the drug himself. See Liteky v. United States, 510 U.S. 540, 555–56 (1994) (“Not establishing bias or partiality . . . are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after imposed sentence, which included both the custodial term of imprisonment and the term of supervised release, was appropriate given the extensive and ongoing nature of Hill’s egregious criminal conduct. We thus readily conclude that there was no procedural error — let alone plain error — in this regard. 5 Appeal: 15-4700 Doc: 63 Filed: 03/23/2017 Pg: 6 of 6 having been confirmed as federal judges, sometimes display.”). Such comments are well within bounds and thus do not offend due process. See United States v. Bakker, 925 F.2d 728, 740 (4th Cir. 1991) (“We recognize that a sentencing court can consider the impact a defendant’s crimes have had on a community and can vindicate that considerable public community’s extent condemnation a interests sentencing and social in justice. is the judge outrage. As To a embodiment of the community’s spokesperson, a judge can lecture a defendant as a lesson to that defendant and as a deterrent to others.” (citations omitted)). Accordingly, we criminal judgment. facts and materials legal before affirm the remaining portion of Hill’s We dispense with oral argument because the contentions are adequately this and argument court presented would not in the aid the decisional process. AFFIRMED 6

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