UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4067
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LLOYD JARREAU, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:13-cr-0051-F-1)
Submitted: October 22, 2014 Decided: November 12, 2014
Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Diana Stavroulakis, Pittsburgh, Pennsylvania, 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Unpublished opinions are not binding precedent in this circuit.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:
Lloyd Jarreau, Jr. appeals his conviction and sentence
after pleading guilty to possession with intent to distribute 28
grams or more of cocaine base and a quantity of heroin in
violation of 21 U.S.C. § 841(a)(1) (2012). Jarreau’s attorney
has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting that there are no meritorious grounds for
appeal but raising the issues of whether the district court had
jurisdiction over the case, whether Jarreau’s guilty plea was
knowing and voluntary, whether his appeal waiver was knowing and
voluntary, and whether his sentence was reasonable. Jarreau was
notified of his right to file a pro se supplemental brief but
has not done so. We affirm.
First, because Jarreau was indicted and pled guilty to
a federal crime, the district court had jurisdiction over the
case pursuant to 18 U.S.C. § 3231 (2012). Counsel next raises
the issue of whether Jarreau’s plea was knowing and voluntary.
“In order for a guilty plea to be valid, the
Constitution imposes ‘the minimum requirement that [the] plea be
the voluntary expression of [the defendant’s] own choice.’”
United States v. Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010)
(quoting Brady v. United States, 397 U.S. 742, 748 (1970)). “It
must reflect a voluntary and intelligent choice among the
alternative choices of action open to the defendant.” Id.
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(citation and internal quotations omitted). “In evaluating the
constitutional validity of a guilty plea, courts look to the
totality of the circumstances surrounding [it], granting the
defendant’s solemn declaration of guilt a presumption of
truthfulness.” Id. (citation and internal quotations omitted).
In federal cases, Rule 11 of the Federal Rules of
Criminal Procedure “governs the duty of the trial judge before
accepting a guilty plea.” Boykin v. Alabama, 395 U.S. 238, 243
n.5 (1969). Rule 11 “requires a judge to address a defendant
about to enter a plea of guilty, to ensure that he understands
the law of his crime in relation to the facts of his case, as
well as his rights as a criminal defendant.” United States v.
Vonn, 535 U.S. 55, 62 (2002). We “accord deference to the trial
court’s decision as to how best to conduct the mandated
colloquy.” United States v. DeFusco, 949 F.2d 114, 116 (4th
Cir. 1991). A guilty plea may be knowingly and intelligently
made based on information received before the plea hearing. See
id.; see also Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005)
(trial court may rely on counsel’s assurance that the defendant
was properly informed of the elements of the crime).
“A federal court of appeals normally will not correct
a legal error made in criminal trial court proceedings unless
the defendant first brought the error to the trial court’s
attention.” Henderson v. United States, 133 S. Ct. 1121, 1124
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(2013) (citing United States v. Olano, 507 U.S. 725, 731
(1993)). Federal Rule of Criminal Procedure 52(b) creates an
exception to the normal rule, providing “[a] plain error that
affects substantial rights may be considered even though it was
not brought to the court’s attention.” Fed. R. Crim. P. 52(b).
When a defendant does not seek to withdraw his guilty
plea in the district court, we review any claims that the court
erred at his guilty plea hearing for plain error. United States
v. Martinez, 277 F.3d 517, 524, 527 (4th Cir. 2002). It is the
defendant’s burden to show (1) error; (2) that was plain; (3)
affecting his substantial rights; and (4) that we should
exercise our discretion to notice the error. See id. at 529,
532. To show prejudice, 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).
We have reviewed the record and conclude that Jarreau
fails to show any plain error by the district court, and his
guilty plea was knowing and voluntary based on a totality of the
circumstances. Jarreau pled guilty because he was guilty, and
he received a substantial benefit from his plea agreement. His
decision to plead guilty was a voluntary and intelligent choice
among the alternative choices of action open to him.
Counsel next questions whether Jarreau’s appeal waiver
was knowing and voluntary. “Plea bargains rest on contractual
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principles, and each party should receive the benefit of its
bargain.” United States v. Blick, 408 F.3d 162, 173 (4th Cir.
2005) (citation and internal quotations omitted). “A defendant
may waive the right to appeal his conviction and sentence so
long as the waiver is knowing and voluntary.” United States v.
Davis, 689 F.3d 349, 354 (4th Cir. 2012) (citing United States
v. Marin, 961 F.2d 493, 496 (4th Cir. 1992)). We review the
validity of an appeal waiver de novo, and we “will enforce the
waiver if it is valid and the issue appealed is within the scope
of the waiver.” Id. (citing Blick, 408 F.3d at 168). While the
validity of an appeal waiver often depends on the adequacy of
the plea colloquy, the issue ultimately depends on the totality
of the circumstances. Blick, 408 F.3d at 169.
We have reviewed the plea agreement and the Rule 11
hearing, and we conclude that Jarreau’s appellate waiver was
knowing and voluntary. The district court questioned Jarreau
concerning the waiver, and Jarreau confirmed his understanding.
However, because the Government has not moved to dismiss the
appeal, we decline to enforce the waiver in this appeal.
Finally, counsel questions whether Jarreau’s sentence
was reasonable. We review a sentence for reasonableness using
an abuse of discretion standard. United States v. McManus, 734
F.3d 315, 317 (4th Cir. 2013) (citing Gall v. United States, 552
U.S. 38, 51 (2007)). First, we consider whether the district
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court committed any significant procedural error, such as
improperly calculating the Guidelines range, failing to consider
the sentencing factors under 18 U.S.C. § 3553(a) (2012), or
failing to adequately explain the sentence. United States v.
Allmendinger, 706 F.3d 330, 340 (4th Cir.), cert. denied, 133 S.
Ct. 2747 (2013). If the sentence is procedurally reasonable, we
then consider its substantive reasonableness, taking into
account the totality of the circumstances and giving due
deference to the district court’s decision. Gall, 552 U.S. at
51. We presume that a sentence within or below a properly
calculated Guidelines range is substantively reasonable. United
States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012).
In sentencing, the district court must first correctly
calculate the defendant’s sentencing range under the Sentencing
Guidelines. Allmendinger, 706 F.3d at 340. The court is next
required to give the parties an opportunity to argue for what
they believe is an appropriate sentence, and the court must
consider those arguments in light of the factors set forth in 18
U.S.C. § 3553(a) (2012). Id. When rendering a sentence, the
court must make and place on the record an individualized
assessment based on the particular facts of the case. United
States v. Carter, 564 F.3d 325, 328, 330 (4th Cir. 2009). In
explaining the sentence, the “sentencing judge should set forth
enough to satisfy the appellate court that he has considered the
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parties’ arguments and has a reasoned basis for exercising his
own legal decisionmaking authority.” Rita v. United States, 551
U.S. 338, 356 (2007). While a court must consider the statutory
factors and explain its sentence, it need not explicitly
reference § 3553(a) or discuss every factor on the record.
United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).
We have reviewed the record and conclude that
Jarreau’s sentence is procedurally and substantively reasonable,
and the district court did not abuse its discretion in imposing
the sentence. The district court properly calculated his
advisory Guidelines range and reasonably determined a sentence
of 96 months in prison followed by supervised release for life
was appropriate in his case. The court granted the Government’s
motion for a downward departure based on Jarreau’s substantial
assistance and sentenced him below his Guidelines range of 135
to 168 months. The court declined to sentence him as low as the
Government recommended, but it adequately explained that the
sentence was appropriate based on Jarreau’s criminal history and
the need to protect the public from his drug dealing.
In accordance with Anders, we have reviewed the entire
record and have found no meritorious issues for appeal.
Accordingly, we affirm the district court’s judgment. This
court requires that counsel inform his or her client, in
writing, of his or her right to petition the Supreme Court of
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the United States for further review. If the client 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 the client.
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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