UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4381
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS TYRONE NORMAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior
District Judge. (7:06-cr-00983-HMH-1)
Submitted: September 24, 2013 Decided: October 1, 2013
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Benjamin T. Stepp, Assistant Federal Public Defender,
Greenville, South Carolina, for Appellant. Maxwell B. Cauthen,
III, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Tyrone Norman appeals his 262-month-sentence
imposed after the district court granted Norman’s 28 U.S.C.A.
§ 2255 (West Supp. 2013) motion and vacated Norman’s original
sentence. 1 Norman’s counsel filed a brief pursuant to Anders,
stating there are no meritorious grounds for appeal, but
questioning whether the district court abused its discretion
when it denied Norman’s motion to withdraw his guilty plea to
Counts Two and Three, and whether Norman’s 262-month sentence is
reasonable. Norman has filed a pro se supplemental brief,
challenging his career offender classification and asserting
that his sentence is unlawful under Alleyne v. United States,
133 S. Ct. 2151 (2013), and Descamps v. United States, 133 S.
Ct. 2276 (2013). The Government has declined to file a
responsive brief. Finding no error, we affirm.
We discern no error in the district court’s decision
to deny Norman’s motion to withdraw his guilty plea to Counts
1
Norman pled guilty pursuant to a plea agreement to one
count each of possession of a firearm after having been
convicted of a felony, in violation of 18 U.S.C. § 922(g)(1)
(2006); possession with intent to distribute cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (2006) (Count Two); and
possession of a firearm during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c) (2006)
(Count Three), and was originally sentenced to 274 months in
prison. This Court affirmed the district court’s judgment after
a review pursuant to Anders v. California, 386 U.S. 738 (1967).
See United States v. Norman, 462 F. App’x 307 (4th Cir. 2012)
(No. 07-4714) (unpublished).
2
Two and Three. We review a district court’s denial of a motion
to withdraw a guilty plea for abuse of discretion. United
States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). “A
defendant has no absolute right to withdraw a guilty plea[.]”
United States v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003)
(internal quotation marks omitted). Instead, the defendant
bears the burden of showing a “fair and just reason” for
withdrawing his guilty plea. Fed. R. Crim. P. 11(d)(2)(B);
United States v. Battle, 499 F.3d 315, 319 (4th Cir. 2007).
As we have explained, several factors—including the
adequacy of the Fed. R. Crim. P. 11 hearing, a defendant’s
credible assertions of legal innocence, and the timeliness of
the motion—should inform a district court’s determination
whether to allow a defendant to withdraw a guilty plea. See
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).
While all the factors noted in Moore should be considered, the
key to determining whether a motion to withdraw should be
granted is whether the Rule 11 hearing was properly conducted.
Bowman, 348 F.3d at 414.
We reviewed the adequacy of Norman’s Rule 11 hearing
in accordance with our Anders obligations and identified no
error in the plea colloquy. See Norman, 462 F. App’x at 311.
Moreover, although Norman stated at his resentencing that he
never wanted to plead guilty to Counts Two and Three, he offered
3
no credible reason why he was innocent of those counts. Last,
Norman’s motion to withdraw his guilty plea was made more than
six years after he entered his guilty plea and after: (1) his
initial sentencing; (2) his convictions were affirmed by this
court; and (3) his sentence was vacated because of his
successful § 2255 motion. Given its untimeliness, see Moore,
931 F.2d at 248 (noting that a six-week delay between guilty
plea and notice of intent to withdraw guilty plea was a long
delay), we conclude that the district court did not abuse its
discretion when it denied Norman’s motion to withdraw his guilty
plea to Counts Two and Three.
We also find no error in the district court’s
imposition of a 262-month sentence. We review a sentence for
reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007).
The first step in this review requires us to ensure that the
district court committed no significant procedural error.
United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008).
Procedural errors include “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.A.] § 3553(a)
[(West 2000 & Supp. 2013)] factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the
chosen sentence—including an explanation for any deviation from
the Guidelines range.” Gall, 552 U.S. at 51.
4
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court, we review for abuse of discretion” and will reverse
unless we can conclude “that the error was harmless.” United
States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). For
instance, if “an aggrieved party sufficiently alerts the
district court of its responsibility to render an individualized
explanation” by drawing arguments from § 3553 “for a sentence
different than the one ultimately imposed,” the party
sufficiently “preserves its claim.” Id. at 578. However, we
review unpreserved non-structural sentencing errors for plain
error. Id. at 576-77.
If, and only if, we find the sentence procedurally
reasonable can we consider the substantive reasonableness of the
sentence imposed. United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009). We presume on appeal that a sentence within a
properly calculated Guidelines range is reasonable. See United
States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).
We discern no error in the district court’s Guidelines
range calculation. Moreover, the record establishes that the
district court afforded counsel an adequate opportunity to argue
regarding an appropriate sentence under the § 3553(a) factors,
during which time defense counsel sought a sentence below
Norman’s Guidelines range. The district court then properly
5
afforded Norman an opportunity to allocute, and ultimately
sentenced Norman to 262 months in prison. Given the rationale
for Norman’s sentence provided by the district court and its
explicit reliance on the § 3553(a) factors, we conclude that the
district court’s explanation for Norman’s sentence allows for
sufficient appellate review and is procedurally reasonable. 2 See
Carter, 564 F.3d at 328. Having discerned no procedural
sentencing error, we presume on appeal that Norman’s within-
Guidelines sentence is reasonable. United States v. Allen, 491
F.3d 178, 193 (4th Cir. 2007). Neither counsel nor Norman offer
any ground upon which to question the substantive reasonableness
of Norman’s sentence and we discern none.
Accordingly, we affirm the district court’s amended
judgment. This court requires that counsel inform Norman, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Norman requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, counsel may then move this court for leave
to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on Norman. We dispense with oral
2
We have considered the issues raised in Norman’s pro se
supplemental brief and find them to be without merit. See
Descamps, 133 S. Ct. at 2286; Alleyne, 133 S. Ct. at 2160 n.1;
United States v. Simmons, 649 F.3d 237, 240-41 (4th Cir. 2011)
(en banc).
6
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
7