UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4795
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OTIS SUTTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:12-cr-00013-MOC-DCK-6)
Submitted: April 28, 2014 Decided: May 13, 2014
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Edward Yeager, Jr., Cornelius, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Otis Sutton appeals the 219-month sentence imposed by
the district court after he pled guilty to robbery by force or
violence, in violation of 18 U.S.C. § 1951(a) (2012), and
brandishing a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (2012).
On appeal, Sutton’s counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), stating that there are no
meritorious grounds for appeal but questioning whether the
district court erred by denying Sutton’s motion at sentencing
that he was entitled to a lower mandatory minimum sentence
because his first plea agreement with the Government erroneously
stated the mandatory minimum sentence for the firearm offense.
Counsel suggests that the magistrate judge erred by calling
attention to this error and prompting a reformation of the plea
agreement with the correct mandatory minimum sentence. Sutton
has filed a pro se brief, arguing that his sentence is
procedurally unreasonable. We affirm.
Sutton asserts that the magistrate judge impermissibly
participated in plea negotiations by highlighting the error in
the first plea agreement. Sutton did not raise this argument
below. Thus, our review is for plain error. United States v.
Bradley, 455 F.3d 453, 461 (4th Cir. 2006); see Henderson v.
2
United States, 133 S. Ct. 1121, 1126-27 (2013) (discussing
standard).
Rule 11(c)(1) of the Federal Rules of Criminal
Procedure forbids judicial participation in plea negotiations.
The primary purpose of Rule 11(c)(1) is to “guard[] against the
high and unacceptable risk of coercing a defendant to enter into
an involuntary guilty plea.” Bradley, 455 F.3d at 460 (internal
quotation marks omitted). Here, Sutton had already decided to
plead guilty when the magistrate judge pointed out the error in
the mandatory minimum term disclosed by the plea agreement.
Moreover, at the plea hearing, the magistrate judge informed
Sutton of the seven-year mandatory minimum sentence he faced, as
reflected in the revised plea agreement, and Sutton stated that
he understood. The magistrate judge did not “promot[e] a guilty
plea []or a trial,” United States v. Burnside, 588 F.3d 511, 522
(7th Cir. 2009) (holding that district court did not
impermissibly participate in plea negotiations where court
informed defendant of applicable mandatory minimum in absence of
substantial assistance motion), and therefore did not
participate in plea negotiations. Thus, this claim fails.
Sutton next contends that his sentence is procedurally
unreasonable because the evidence contradicted the loss amount
the district court attributed to him. We review a sentence for
reasonableness, applying an abuse of discretion standard. Gall
3
v. United States, 552 U.S. 38, 51 (2007). “[S]entencing courts
. . . make factual findings concerning sentencing factors . . .
by a preponderance of the evidence.” United States v. Perry,
560 F.3d 246, 258 (4th Cir. 2009). We have thoroughly reviewed
the transcript of Sutton’s sentencing hearing and conclude that
the loss amount attributed to Sutton was supported by a
preponderance of the evidence. See United States v. Thorson,
633 F.3d 312, 317 (4th Cir. 2011) (“Where there are two
permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.”) (internal quotation
marks omitted).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious grounds for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Sutton, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Sutton 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 Sutton. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
4
materials before this court and argument would not aid the
decisional process.
AFFIRMED
5