UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4605
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL C. HILLIARD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Henry E. Hudson, District Judge. (3:17-cr-00044-HEH-1)
Submitted: May 14, 2018 Decided: May 25, 2018
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Geremy C. Kamens, Federal Public Defender, Frances H. Pratt, Assistant Federal Public
Defender, Alexandria, Virginia, Carolyn V. Grady, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant.
Richard Daniel Cooke, Assistant United States Attorney, Heather Hart Mansfield,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael C. Hilliard pled guilty to possession of a firearm by a convicted felon, 18
U.S.C. § 922(g)(1) (2012), and was sentenced to 90 months’ imprisonment. Hilliard
appeals. 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 failed to ensure that Hilliard was making a knowing and voluntary decision
to plead guilty and whether Hilliard’s sentence is procedurally unreasonable. Although
advised of his right to file a pro se supplemental brief, Hilliard has not done so.
Counsel first questions whether Hilliard’s guilty plea was knowingly and
voluntarily entered because the district court failed to adequately comply with Fed. R.
Crim. P. 11 during the guilty plea hearing. Specifically, counsel asserts that the district
court failed to: (1) describe the elements of the offense, (2) ascertain that Hilliard was
aware of his constitutional right to confront and cross-examine government witnesses,
and (3) ensure that Hilliard had not been forced or threatened into pleading guilty.
Because Hilliard did not move to withdraw his guilty plea, this court reviews the
adequacy of the Rule 11 proceeding for plain error. United States v. Sanya, 774 F.3d
812, 815 (4th Cir. 2014). To prevail under this standard, Hilliard “must demonstrate not
only that the district court plainly erred, but also that this error affected [his] substantial
rights.” Id. at 816. A defendant who pleads guilty establishes that an error affected his
substantial rights by demonstrating a reasonable probability that he would not have pled
guilty but for the error. United States v. Davila, 569 U.S. 597, 608 (2013).
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Before accepting a guilty plea, the district court must conduct a plea colloquy in
which it informs the defendant of, and determines he understands, the rights he is
relinquishing by pleading guilty, the charge to which he is pleading, and the maximum
and mandatory minimum penalties he faces. Fed. R. Crim. P. 11(b)(1); United States v.
DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). The court also must ensure that the plea
was voluntary and not the result of threats, force, or promises not contained in the plea
agreement, Fed. R. Crim. P. 11(b)(2), and “that there is a factual basis for the plea,” Fed.
R. Crim. P. 11(b)(3). Any variance from the requirements of Rule 11 “is harmless error
if it does not affect substantial rights.” Fed. R. Crim. P. 11(h).
We have reviewed the transcript of Hilliard’s guilty plea hearing and find that the
district court substantially complied with Rule 11, ensuring that Hilliard entered his plea
knowingly and voluntarily and that a factual basis supported the pleas. See DeFusco, 949
F.2d at 116, 119-20 (explaining Rule 11 requirements). Accordingly, we find that any
omission by the district court was harmless and that Hilliard’s guilty plea was valid.
Next, counsel questions the procedural reasonableness of Hilliard’s sentence
because the district court failed to adequately explain its reasons for the chosen sentence.
We review a defendant’s sentence “under a deferential abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 41 (2007). Under this standard, a sentence is
reviewed for both procedural and substantive reasonableness. Id. at 51. In determining
procedural reasonableness, this court considers whether the district court properly
calculated the defendant’s advisory Sentencing Guidelines range, gave the parties an
opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a)
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(2012) factors, and sufficiently explained the selected sentence. Id. at 49-51.
“Regardless of whether the district court imposes an above, below, or within-Guidelines
sentence, it must place on the record an ‘individualized assessment’ based on the
particular facts of the case before it.” United States v. Carter, 564 F.3d 325, 330 (4th Cir.
2009) (quoting Gall, 552 U.S. at 50). In evaluating a sentencing court’s explanation of a
selected sentence, this court consistently has held that, although the district court must
consider the statutory factors and explain the sentence, “it need not robotically tick
through the § 3553(a) factors.” United States v. Helton, 782 F.3d 148, 153 (4th Cir.
2015) (internal quotation marks omitted).
We have reviewed the record and conclude that the district court properly
calculated Hilliard’s Guidelines range and, although the district court’s sentencing
explanation was brief, it was not procedurally deficient. Rather, the record demonstrates
that the district court conducted an individualized assessment of Hilliard’s circumstances
and adequately explained its decision before imposing sentence. The sentence was
therefore procedurally reasonable.
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious issues for appeal. We therefore affirm Hilliard’s conviction
and sentence. This court requires that counsel inform Hilliard, in writing, of the right to
petition the Supreme Court of the United States for further review. If Hilliard 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 Hilliard. We dispense with oral
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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
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