UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4669
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN CARLTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:09-
cr-00444-RWT-3)
Submitted: December 7, 2010 Decided: January 4, 2011
Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven H. Levin, Baltimore, Maryland, for Appellant. Barbara
Suzanne Skalla, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Leroy Carlton appeals the fifty-two-month
sentence imposed following his guilty plea, pursuant to a
written plea agreement, to two counts of possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g) (2006).
Counsel for Carlton filed a brief in this court in accordance
with Anders v. California, 386 U.S. 738 (1967), certifying that
there are no non-frivolous issues for appeal, but questioning
whether: (1) Carlton’s guilty plea was valid under Federal Rule
of Criminal Procedure 11 (“Rule 11”); and (2) the court imposed
an unreasonable sentence. Carlton filed a pro se supplemental
brief, arguing that (1) the Government breached the plea
agreement; and (2) he received ineffective assistance of counsel
because he was not advised that he could withdraw his guilty
plea.
Because Carlton did not move to withdraw his guilty
plea in the district court or raise any objections to the Rule
11 colloquy, the colloquy is reviewed for plain error. United
States v. General, 278 F.3d 389, 393 (4th Cir. 2002); United
States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002). To
demonstrate plain error, a defendant must show that: (1) there
was an error; (2) the error was plain; and (3) the error
affected his “substantial rights.” United States v. Olano, 507
U.S. 725, 732 (1993). A defendant’s substantial rights are
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affected if the error “influenced the defendant’s decision to
plead guilty and impaired his ability to evaluate with eyes open
the direct attendant risks of accepting criminal
responsibility.” United States v. Goins, 51 F.3d 400, 402-03
(4th Cir. 1995) (internal quotation marks omitted); see also
Martinez, 277 F.3d at 532 (holding that a defendant must
demonstrate that he would not have pled guilty but for the
error).
Counsel challenges the adequacy of the Rule 11
proceeding but does not specify any deficiencies. A review of
the record reveals that the district court complied with the
requirements of Rule 11, ensuring that Carlton’s plea was
knowing and voluntary, that he understood the rights he was
giving up by pleading guilty and the sentence he faced, and that
he committed the offenses to which he pled guilty. Therefore,
we hold that Carlton’s guilty plea was knowing and voluntary.
Next, counsel challenges the reasonableness of
Carlton’s sentence. We review a sentence imposed by a district
court under a deferential abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 45 (2007); United States v. Lynn,
592 F.3d 572, 578-79 (4th Cir. 2010) (abuse of discretion
standard of review applicable when defendant properly preserves
a claim of sentencing error in district court “[b]y drawing
arguments from [18 U.S.C.] § 3553 [2006] for a sentence
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different than the one ultimately imposed”). We begin by
reviewing the sentence for significant procedural error,
including such errors as “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) 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.” Gall, 552
U.S. at 51. If there are no procedural errors, we then consider
the substantive reasonableness of the sentence, taking into
account the totality of the circumstances. United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
“When rendering a sentence, the district court ‘must
make an individualized assessment based on the facts
presented.’” United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009) (quoting Gall, 552 U.S. at 50). Accordingly, a
sentencing court must apply the relevant § 3553(a) factors to
the particular facts presented and must “state in open court”
the particular reasons that support its chosen sentence. Id.
The court’s explanation need not be exhaustive; it must be
“sufficient ‘to satisfy the appellate court that [the district
court] has considered the parties’ arguments and has a reasoned
basis for exercising [its] own legal decisionmaking authority.’”
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United States v. Boulware, 604 F.3d 832, 837 (4th Cir. 2010)
(quoting Rita v. United States, 551 U.S. 338, 356 (2007)).
We conclude that the sentence imposed by the district
court was both procedurally and substantively reasonable. The
district court used the correct Guidelines range and understood
that it was advisory. It imposed a within-Guidelines sentence,
see U.S. Sentencing Guidelines Manual (“USSG”) ch. 5, pt. A
(sentencing table) (2009), considered both parties’ arguments
and the § 3553(a) factors, and provided a clear explanation for
its decision. Counsel questions the court’s deviation from the
terms of the plea agreement * but correctly concludes that the
court did not err when it enhanced Carlton’s offense level by
three levels. The district court was not bound by the
Government’s recommendation of a certain sentence or sentencing
range in the plea agreement. Fed. R. Crim. P. 11(c)(1)(B).
Accordingly, we hold that the sentence imposed by the district
court was reasonable.
In his pro se supplemental brief, Carlton argues that
the Government breached the plea agreement because he agreed to
a sentence of thirty-three to forty-one months’ imprisonment but
*
In the plea agreement, the Government mistakenly suggested
that Carlton was subject to a two-level enhancement pursuant to
USSG § 3C1.2, rather than the appropriate three-level
enhancement pursuant to USSG § 3C1.3.
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received a fifty-two month sentence. (Pro Se Br. at 1).
Although a breach of a plea agreement by the government can
invalidate an appellate waiver, see generally Santobello v. New
York, 404 U.S. 257, 262 (1971) (stating that “when a plea rests
in any significant degree on a promise or agreement of the
prosecutor, . . . such promise must be fulfilled”), “no party is
obligated to provide more than is specified in the agreement
itself.” United States v. Peglera, 33 F.3d 412, 413 (4th Cir.
1994) (citations omitted). In other words, “the government is
held only to those promises that it actually made.” Id.
We hold that the Government did not breach the plea
agreement. Carlton’s plea agreement did not contain a promise
that Carlton would be sentenced within the thirty-three to
forty-one month range. The signed agreement specifically states
that the district court is not bound by the agreement’s
sentencing recommendation and has the authority to impose a
sentence up to the ten-year statutory maximum. Furthermore, the
Government requested a sentence at the low end of the plea
agreement’s incorrect calculation. Thus, the Government did not
breach the plea agreement.
Finally, Carlton claims that counsel rendered
ineffective assistance by failing to inform him that he could
withdraw his guilty plea at sentencing. Claims of ineffective
assistance of counsel are not cognizable on direct appeal unless
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the record conclusively establishes that counsel provided
ineffective assistance. United States v. Baldovinos, 434 F.3d
233, 239 (4th Cir. 2006). Because there is no evidence in the
record that counsel was ineffective, we hold that Carlton’s
claim is not ripe for review in this appeal; rather, it must be
asserted, should Carlton wish to do so, in an appropriate
motion for post-conviction relief.
In accordance with Anders, we have examined the entire
record and find no other meritorious issues for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Carlton, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Carlton 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 Carlton.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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