UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4494
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRANCE GOODMAN, a/k/a Fresh,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:13-cr-00007-D-1)
Submitted: March 28, 2014 Decided: April 11, 2014
Before NIEMEYER and KING, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Neal Gary Rosensweig, P.A., Hollywood, Florida, for Appellant.
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terrance Goodman pled guilty, without a plea
agreement, to one count of conspiracy to possess with the intent
to distribute and distribute heroin, in violation of 21 U.S.C.
§ 846 (2012), and four counts of distribution of heroin and
aiding and abetting, in violation of 21 U.S.C. § 841(a)(1)
(2012) and 18 U.S.C. § 2 (2012). The district court sentenced
Goodman to concurrent 125-month terms on each count. In doing
so, the district court upwardly departed from a Guidelines range
of 57 to 71 months to a range of 120 to 125 months under U.S.
Sentencing Guidelines Manual § 4A1.3(a)(1) (2012), based on the
inadequacy of Goodman’s criminal history category and his risk
of recidivism. In addition, the district court stated that even
if its Guidelines calculations were incorrect or the upward
departure was erroneous, it would impose the same sentence as a
variance under the factors set forth in 18 U.S.C. § 3553(a)
(2012). Goodman timely appealed.
Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), finding no meritorious grounds
for appeal but questioning whether Goodman’s guilty plea was
knowing and voluntary and challenging a four-level enhancement
under USSG § 3B1.1(a) for Goodman’s role as a leader or
organizer of the criminal activity, and the reasonableness of
Goodman’s above-Guidelines range sentence. In his pro se
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supplemental brief, Goodman challenges the validity of his
sentence and argues that he was denied effective assistance of
counsel at sentencing. For the reasons that follow, we affirm.
Goodman did not seek to withdraw his guilty plea in
the district court. Therefore, we review the Fed. R. Crim. P.
11 hearing for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). “[T]o satisfy the plain error
standard, [Goodman] must show: (1) an error was made; (2) the
error is plain; and (3) the error affects substantial rights.”
United States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir.
2009). Our review of the plea hearing transcript revealed no
errors and that the district court fully complied with Rule 11
and properly ensured that Goodman’s guilty plea was knowing and
voluntary and supported by a sufficient factual basis. United
States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).
Turning to Goodman’s sentence, the district court
imposed the 125-month sentence as an upward departure sentence
and, alternatively, as a variance sentence. “[A] sentencing
court has flexibility in fashioning a sentence outside of the
Guidelines range.” United States v. Diosdado-Star, 630 F.3d
359, 364 (4th Cir. 2011) (citing Rita v. United States, 551 U.S.
338, 356 (2007)). When the district court imposes either a
variance or a departure sentence, this Court “consider[s]
whether the sentencing court acted reasonably both with respect
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to its decision to impose such a sentence and with respect to
the extent of the divergence from the sentencing range.” United
States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007). A larger variance requires more substantial
justification. Diosdado-Star, 630 F.3d at 366. We will affirm
a variant sentence if “the § 3553(a) factors, on the whole,
justified the sentence” imposed. Id. at 367 (internal quotation
marks omitted).
In fashioning the 125-month sentence, the court took
into account Goodman’s pattern of receiving lenient punishment
for his crimes and then quickly reoffending upon release, his
history of violence and involvement with weapons, his pride in
his gang membership and leadership, and the seriousness of his
offenses of conviction. The court credited the fact that
Goodman received a GED and was intelligent, but found that these
positives were countered by his “extraordinary level of violence
and almost certain likelihood, 100 percent, of recidivism.” All
of these considerations by the court speak directly to several
§ 3553(a) factors. See 18 U.S.C. § 3553(a)(1), (a)(2)(A),
(a)(2)(B), (a)(2)(C). Given the district court’s consideration
of the parties’ arguments and the § 3553(a) sentencing factors,
and its articulation of reasons linked to § 3553(a) that
justified the imposition of an upward variance sentence, we
defer to the district court’s determination as to the extent of
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the variance. United States v. Hargrove, 701 F.3d 156, 163-64
(4th Cir. 2012) (affirming variance from zero-to-six-month
Guidelines range to sixty-month sentence), cert. denied, 133 S.
Ct. 2403 (2013); Diosdado-Star, 630 F.3d at 366-67 (affirming
variance sentence six years greater than Guidelines range
because sentence was based on the district court’s examination
of relevant § 3553(a) factors). We conclude that the district
court acted reasonably in imposing the variance sentence.
Where, as here, a district court offers alternate and
independent rationales for a sentence outside the Guidelines
range, we will uphold the sentence if one of the justifications
is reasonable even if we find fault with the other. United
States v. Rivera-Santana, 668 F.3d 95, 104 (4th Cir.), cert.
denied, 133 S. Ct. 274 (2012); United States v. Evans, 526 F.3d
155, 165 (4th Cir. 2008). Therefore, assuming without deciding
that there was error in the Guidelines calculations or the
upward departure, or both, we nevertheless conclude that
Goodman’s sentence is reasonable because the district court
explicitly stated that it would apply the same sentence as an
alternative variance sentence considering the § 3553(a) factors,
and the variance sentence is reasonable.
In accordance with Anders, we have thoroughly reviewed
the record and conclude that there are no meritorious grounds
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for appeal. * We therefore affirm the judgment of the district
court. We deny counsel’s motion to withdraw. This court
requires that counsel inform Goodman, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Goodman requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may renew his motion to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Goodman. We dispense with oral 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
*
We have considered the issues raised in Goodman’s pro se
supplemental brief and conclude that they are without merit.
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