UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4249
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARYL BERNARD CARTER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:09-cr-00130-BO-1)
Submitted: February 17, 2011 Decided: March 17, 2011
Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Rudolph A. Ashton, III, MCCOTTER, ASHTON & SMITH, P.A., New
Bern, North Carolina, for Appellant. George E.B. Holding,
United States Attorney, Jennifer P. May-Parker, Kristine L.
Fritz, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daryl Bernard Carter was found guilty following his
jury trial for conspiracy to interfere with commerce by robbery,
in violation of 18 U.S.C. § 1951 (2006) (Count 1); interference
with commerce by robbery and aiding and abetting (Counts 2, 4);
use and carrying of a firearm in relation to a crime of violence
and aiding and abetting, in violation of 18 U.S.C.A. § 924(c)
(West Supp. 2010) (Counts 3, 5, 7); armed bank robbery and
aiding and abetting (Count 6); and bank robbery (Count 8). He
was sentenced to 240 months of imprisonment each for Counts 1,
2, 4, and 8 to be served concurrently; a 292-month term for
Count 6 imposed concurrently; a 120-month consecutive term for
Count 3; and 300-month consecutive terms each for Counts 5 and
7, for a total sentence of 1012 months of imprisonment.
On appeal, Carter raises four issues: (1) whether the
district court erred by failing to advise him of his potential
sentence; (2) whether the court erred by refusing to allow
defense counsel to recross-examine a witness; (3) whether the
district court created the appearance of partiality and
prejudice by its extensive questioning of a witness; and
(4) whether the district court erred by imposing Carter’s three
§ 924(c) sentences consecutively. For the reasons that follow,
we affirm.
2
Carter’s first issue fails because a court’s duty to
inform a defendant of a potential sentence emanates from Rule 11
of the Federal Rules of Criminal Procedure See Fed. R. Crim. P.
11(b)(1)(H) (maximum possible sentence); Fed. R. Crim. P.
11(b)(1)(I) (minimum sentence). Here, Carter did not plead
guilty; therefore, Rule 11 is not applicable.
Second, Carter contests the district court’s decision
denying his request to recross-examine a bank teller. We
conclude that the redirect examination revealed no new issues
requiring an opportunity for recross-examination. See United
States v. Fleschner, 98 F.3d 155, 158 (4th Cir. 1996).
Therefore, we find no abuse of discretion in the district
court’s ruling. See United States v. Smith, 451 F.3d 209, 220
(4th Cir. 2006); United States v. Scheetz, 293 F.3d 175, 184
(4th Cir. 2002).
Next, Carter contends that the district judge’s
extensive questioning of accomplice Kendrick Tanner created the
impression that the judge was partial against him. Carter
alleges prejudice from this conduct and argues that he is
entitled to a new trial, framing the issue as one of judicial
misconduct. See United States v. Villarini, 238 F.3d 530, 536
(4th Cir. 2001) (providing an abuse of discretion standard of
appellate review). As Carter concedes, however, he failed to
object to the judge’s extensive questioning at trial. Thus, we
3
only review this claim for plain error. See United States v.
Godwin, 272 F.3d 659, 678 (4th Cir. 2001) 679-81 (declining to
find plain error despite judge’s substantial prejudicial
comments, questions, and cross-examination). Although the
district court’s questioning of Tanner was substantial, we find
no prejudice. We find that Carter has failed to meet the
demanding burden of showing plain error on appeal.
Finally, Carter contests his three consecutive
§ 924(c) sentences asking whether our decision on the matter in
United States v. Studifin, 240 F.3d 415, 423-24 (4th Cir. 2001),
is still applicable. See id. (concluding that the 1998
amendments to the Sentencing Guidelines were not intended to
narrow the scope of § 924(c)’s mandatory consecutive sentencing
scheme). As noted in the Government’s Fed. R. App. P. 28(j)
filing, however, the Supreme Court recently has affirmed this
Court’s statutory interpretation on the matter. See Abbott v.
United States, 131 S. Ct. 18, 23 (2010) (holding that a
defendant is subject to a mandatory consecutive sentence under
§ 924(c); a defendant is not spared from that sentence by virtue
of receiving a higher mandatory minimum on a different count of
conviction, unless another statute imposes an even greater
mandatory minimum sentence for an offense that embodies all the
elements of § 924(c)). Thus, this claim fails.
4
Accordingly, we affirm Carter’s convictions and
sentences. We dispense with oral argument as the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
5