UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4471
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILLIP GERRAD RUCKER,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. G. Ross Anderson, Jr., Senior
District Judge. (8:08-cr-00628-GRA-2)
Submitted: September 9, 2010 Decided: September 17, 2010
Before DUNCAN and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Elizabeth B. Scherer, Matthew N. Leerberg, SMITH MOORE
LEATHERWOOD LLP, Raleigh, North Carolina, for Appellant. Kevin
F. McDonald, Acting United States Attorney, A. Lance Crick,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phillip Gerrad Rucker pleaded guilty to one count of
conspiracy to possess with intent to distribute and to
distribute more than 500 grams of methamphetamine and 100
kilograms or more of marijuana, in violation of 21 U.S.C. § 846
(2006), and was sentenced to 262 months of imprisonment. On
appeal, Rucker contends that the district court committed
several errors during his Fed. R. Crim. P. 11 colloquy and
sentencing. For the following reasons, we affirm Rucker’s
conviction but vacate his sentence and remand for further
proceedings.
I.
Rucker was arrested following an investigation into
the drug operations of one Howard Stiwinter. Federal agents
intercepted a phone call between Stiwinter and Rucker arranging
for a drug sale to Rucker. Rucker was indicted on two counts of
a multi-count indictment, and charged with conspiracy to possess
with intent to distribute and to distribute more than 500 grams
of methamphetamine and 100 kilograms or more of marijuana, in
violation of 21 U.S.C. § 846, and unlawful use of a
communications facility to facilitate commission of a drug-
related felony, in violation of 21 U.S.C. § 843(b) (2006).
Rucker entered into a plea agreement, agreeing to
plead guilty to the conspiracy charge in exchange for dismissal
2
of the communications charge. Pursuant to the plea agreement,
Rucker also agreed to forfeit $4124 in United States currency.
Prior to sentencing, a probation officer prepared a
Presentence Report (PSR). The PSR determined that the base
offense level was 26 and Rucker had a criminal history category
of III. The PSR also determined, however, that pursuant to U.S.
Sentencing Guidelines Manual § 4B1.1 (2008), Rucker was a career
offender because he had two prior convictions for controlled
substance offenses. Accordingly, Rucker’s base offense level
was adjusted to 37 and his criminal history to category VI.
Rucker received a total reduction of three levels, USSG § 3E1.1,
yielding a total offense level of 34 and a Guideline range of
262 to 327 months of imprisonment. USSG Ch. 5, Pt. A
(sentencing table). By statute, as a result of the prior
convictions, Rucker faced a mandatory minimum sentence of ten
years’ imprisonment. See 21 U.S.C. § 841(b)(1)(B) and 851.
At sentencing, Rucker’s counsel argued that the PSR
erred in finding that Rucker was a career offender and that, in
the alternative, the district court should vary downward from
the Guideline range because of Rucker’s personal circumstances.
In support of this latter argument, Rucker’s counsel noted that
Rucker’s criminal history was limited to two incidents that
occurred close in time in 1994 and that, since his parole in
1998, Rucker had maintained a clean record. In addition,
3
counsel noted that Rucker was married and a lifelong area
resident. Counsel finally noted that Rucker was not extensively
involved in Stiwinter’s criminal enterprise. The district court
upheld the determination that Rucker was a career offender and
rejected what it termed Rucker’s plea for leniency. Without
affording Rucker himself an opportunity to speak, the district
court stated that it considered the “objections and the advisory
nature of the sentencing guidelines, as well as the
discretionary nature of the sentencing factors,” and sentenced
Rucker to 262 months of imprisonment, the bottom of the
applicable Guideline range.
Rucker noted a timely appeal.
II.
On appeal, Rucker argues that the district court
plainly erred during his Rule 11 colloquy and also during
sentencing. 1 Rucker admits that he did not raise an objection
below to the challenges to his guilty plea, and our review is
thus for plain error. See United States v. Vonn, 535 U.S. 55,
1
We note that Rucker’s plea agreement contained an
appellate waiver. The Government concedes, however, that the
district court did not address the waiver with Rucker during his
Rule 11 colloquy and, in fact, suggested to Rucker that he could
appeal. Accordingly, the Government concedes that the waiver is
unenforceable and we may proceed to the merits of Rucker’s
appeal. See United States v. Manigan, 592 F.3d 621, 628 (4th
Cir. 2010).
4
58-59 (2002) (plain error review applies to unpreserved Rule 11
claims).
In order to satisfy the plain error standard, Rucker
must show: (1) an error was made; (2) the error is plain; and
(3) the error affects his substantial rights. See United States
v. Olano, 507 U.S. 725, 732 (1993). The decision to correct
the error lies within our discretion, and we exercise that
discretion only if the error “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Olano,
507 U.S. at 732 (alterations and internal quotation marks
omitted). Rucker bears the burden of satisfying each of the
elements of the plain error standard. Vonn, 535 U.S. at 59.
For Rucker to satisfy the third requirement in the Rule 11
context—that the error affected his substantial rights—he “must
show a reasonable probability that, but for the error, he would
not have entered the plea.” United States v. Dominguez Benitez,
542 U.S. 74, 83 (2004). “[The] defendant must . . . satisfy the
judgment of the reviewing court, informed by the entire record,
that the probability of a different result is sufficient to
undermine confidence in the outcome of the proceeding.” Id. at
83 (internal quotation marks omitted).
In this case, Rucker contends that the district court
plainly erred in failing to explain to Rucker two portions of
5
his plea agreement: the appeal waiver and a property forfeiture
agreement.
We conclude that, even assuming the district court
plainly erred during the Rule 11 colloquy, Rucker is not
entitled to relief. In United States v. Massenburg, 564 F.3d
337 (4th Cir. 2009), the district court failed to inform
Massenburg that he could be subject to an enhanced sentence if
he had three prior felony convictions. We concluded that this
failure constituted plain error but that Massenburg could not
show the error affected his substantial rights. In reaching
this conclusion, we noted that the record was devoid of any
statements from Massenburg that he would not have pleaded guilty
if he had been aware of the possibility of a higher sentence.
Id. at 343. We also noted that Massenburg never moved to
withdraw his plea after the PSR indicated that he was subject to
the enhanced sentence. Id. at 343-44. Finally, we noted that
the case against Massenburg was a “strong one,” permitting us to
“legitimately question what Massenburg would have to gain by
going to trial.” Id. at 344. See also Dominguez Benitez, 542
U.S. at 85 (“When the record made for a guilty plea and
sentencing reveals evidence, as this one does, showing both a
controlled sale of drugs to an informant and a confession, one
can fairly ask a defendant seeking to withdraw his plea what he
might ever have thought he could gain by going to trial.”).
6
Likewise, in this case there is no indication in the
record that Rucker would not have pleaded guilty but for the
errors. Indeed, because the appellate waiver is unenforceable,
it is unclear what exactly Rucker would have to gain from a
remand. Regarding the forfeiture provision, there is no record
evidence that the forfeiture of a little more than $4000
affected Rucker’s decision to plead guilty. As the Government
notes in its brief, even assuming the district court did not
adequately explain the forfeiture to Rucker, the currency was
forfeited in October 2008, more than five months prior to
Rucker’s plea. Moreover, in August 2008, two notices were sent
to Rucker and his wife explaining that the currency would be
forfeited unless an appropriate claim was made. Thus, given the
fact that the currency was forfeited prior to Rucker’s plea and
neither Rucker nor his wife placed a claim on the money when
notified of their opportunity to do so, it hardly seems
plausible that explanation of the forfeiture provision would
have prompted Rucker to reassess his decision to plead guilty.
Finally, as in Massenburg, the evidence against Rucker is
strong: agents intercepted a phone call between Rucker and
Stiwinter in which Rucker agreed to purchase drugs from
Stiwinter.
In sum, even assuming the district court committed
Rule 11 error by failing to address Rucker regarding the
7
appellate waiver and the forfeiture provisions in his plea
agreement, Rucker cannot satisfy the remaining plain error
requirements. Accordingly, we conclude that his conviction was
the result of a valid guilty plea. 2
Next, Rucker contends that the district court
committed reversible error during sentencing. Rucker first
argues that the district court erroneously concluded that he was
a career offender. In the alternative, Rucker argues that the
district court committed plain error by failing to allow him to
allocute at sentencing and committed procedural error by failing
to provide an adequate statement of reasons for the sentence
imposed.
“In determining whether a district court properly
applied the advisory Guidelines, including application of any
sentencing enhancements, we review the district court's legal
conclusions de novo and its factual findings for clear error.”
United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009). In
this case, the PSR concluded that Rucker had two prior felony
convictions, but Rucker contends that, because the sentencing
2
Rucker also contends that the cumulative error doctrine
applies in this case. See United States v. Martinez, 277 F.3d
517, 532 (4th Cir. 2002). Because neither error worked “any
cognizable harm, it necessarily follows that the cumulative
error doctrine finds no foothold.” United States v. Basham, 561
F.3d 302, 330 (4th Cir. 2009) (alterations and internal
quotation marks omitted).
8
for the convictions was consolidated, the convictions should
count as a single conviction under USSG § 4A1.2(a)(2). The
district court found that the charges were separated by an
intervening arrest and therefore counted as separate
convictions. On appeal, Rucker does not contest the existence
of a separate intervening arrest, but rather argues that an
intervening arrest should be but one factor examined under
§ 4A1.2. The Guideline, however, is quite clear that “[p]rior
sentences always are counted separately if the sentences were
imposed for offenses that were separated by an intervening
arrest (i.e., the defendant is arrested for the first offense
prior to committing the second offense).” USSG § 4A1.2
(emphasis added). As the PSR recounts, the charges were
separated by an intervening arrest: Rucker was arrested on
September 17, 1993 for possession with intent to distribute
cocaine and then arrested in January 1994 following an
investigation into cocaine distribution from November 1993 to
January 1994. Accordingly, the district court correctly found
that Rucker’s prior convictions counted as separate convictions
for the purpose of calculating Rucker’s sentence.
In his alternative argument, Rucker contends that the
district court committed plain error by not offering him the
opportunity to allocute during sentencing and committed
procedural error by failing to provide an adequate statement of
9
reasons for the sentence. Because we agree that the district
court committed plain error by not affording Rucker an
opportunity to allocute, we need not address Rucker's claim that
the court did not adequately explain its sentence.
In United States v. Muhammad, 478 F.3d 247 (4th Cir.
2007), we held that failure to permit a defendant to allocute
during sentencing constituted plain error. We found that the
error affected Muhammad’s substantial rights because he “was
denied the opportunity to attempt to personally persuade the
district court that he should receive a lower sentence under the
new advisory guidelines regime.” Id. at 251. Because the post-
Booker regime “allows greater consideration of a defendant’s
individual circumstances,” the “possibility remain[ed]” that
Muhammad could have received a lower sentence if he had the
right of allocution. Id. (internal quotation marks omitted).
The Government assumes that the district court plainly
erred by failing to invite Rucker’s allocution, but argues that
this error did not thwart Rucker's substantial rights. We
disagree. Although Rucker's 262-month sentence was at the
bottom of the Guideline range, his statutory minimum sentence
was only ten years' imprisonment. See 21 U.S.C. § 841(b)(1)(B)
(2006). We conclude that, as in Muhammad, there is a realistic
possibility that Rucker could have received a lower sentence had
he been permitted to allocute. As Rucker observes, his criminal
10
history is limited to his 1994 convictions, and his record was
clean from 1998 to 2008. Rucker further notes that he has
developed a relationship with his daughter and extended family
and is married to a nurse in the community. Moreover, Rucker
points out that, despite his minimal involvement in the
conspiracy (a single phone call and purchase), he received the
highest sentence of any of the co-conspirators charged with
Stiwinter. Indeed, Stiwinter himself received a sentence of 262
months' imprisonment. A distinct possibility thus remains that,
had he been afforded the opportunity to allocute, Rucker would
have received a lower sentence. Accordingly, we vacate Rucker’s
sentence and remand for a new sentencing proceeding. 3
III.
For the foregoing reasons, we affirm Rucker’s
conviction but vacate his sentence and remand for resentencing.
We dispense with oral argument because the facts and legal
3
Because we are vacating Rucker’s sentence on this ground,
we do not consider Rucker’s alternate argument that the district
court failed to provide an adequate statement of reasons for the
sentence. We are confident that the district court will be
mindful, on resentencing, of its obligation to consider the
parties' arguments and the statutory sentencing factors, "make
an individualized assessment based on the facts presented," and
explain the selected sentence. Gall v. United States, 552 U.S.
38, 49-50 (2007).
11
contentions are adequately presented in the materials before the
court, and argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
12