UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4210
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERMAL LEE, a/k/a Jermal Ari Lee,
Defendant - Appellant.
No. 12-4237
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN GOLDSMITH, a/k/a Kevin Lamont Goldsmith,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Greenville. J. Michelle Childs, District
Judge. (6:11-cr-00338-JMC-5; 6:11-cr-00338-JMC-9)
Submitted: December 18, 2012 Decided: February 7, 2013
Before WYNN, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jill E.M. HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston,
South Carolina; T. Kirk Truslow, TRUSLOW LAW FIRM, LLC, North
Myrtle Beach, South Carolina, for Appellants. Andrew Burke
Moorman, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Jermal Lee and Kevin
Goldsmith appeal their convictions and respective 180-month and
204-month sentences following guilty pleas to conspiracy to
possess with intent to distribute five kilograms or more of
cocaine, 280 grams or more of cocaine base, and 1000 kilograms
of marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)
(2006). Appellate counsel filed a joint brief pursuant to
Anders v. California, 386 U.S. 738 (1967), certifying that there
are no meritorious issues for appeal, but questioning whether
the district court fully complied with Fed. R. Crim. P. 11 in
accepting the appellants’ guilty pleas and whether the
appellants’ sentences are reasonable.
In Lee’s pro se supplemental brief, he argues that:
(1) his appellate waiver is void and should not be enforced;
(2) his guilty plea is void because the trial court failed to
inform him of the mandatory minimum sentence during the plea
colloquy and failed to elicit an oral plea of guilty from him;
(3) his sentence was erroneously enhanced pursuant to 21 U.S.C.
§ 851 and the career offender enhancement provision; and (4) his
trial counsel provided ineffective assistance by allowing him to
plead guilty when he was actually innocent. In Goldsmith’s pro
se supplemental brief, he asserts that: (1) his trial counsel
was constitutionally ineffective for failing to inform him that
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he qualified as a career offender, failing to perform an
adequate investigation into the facts of the case, and failing
to adequately research the sentencing options; (2) he was
erroneously sentenced as a career offender; and (3) his sentence
was erroneously enhanced pursuant to 21 U.S.C. § 851. The
Government declined to file a responsive brief. Following a
careful review of the record, we affirm.
We first address the plea colloquies. Federal Rule of
Criminal Procedure 11 requires a trial court, prior to accepting
a guilty plea, to conduct a plea colloquy in which it informs
the defendant of, and determines that the defendant comprehends,
the nature of the charges to which he is pleading guilty, any
mandatory minimum penalty, the maximum possible penalty he
faces, and the rights he is relinquishing by pleading guilty.
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
Additionally, the district court must ensure that the
defendant’s plea was voluntary and did not result from force,
threats, or promises not contained in the plea agreement. Fed.
R. Crim. P. 11(b)(2). “In reviewing the adequacy of compliance
with Rule 11, this [c]ourt should accord deference to the trial
court’s decision as to how best to conduct the mandated colloquy
with the defendant.” DeFusco, 949 F.2d at 116.
Because Lee and Goldsmith did not move to withdraw
their guilty pleas in the district court or raise any objections
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to the Rule 11 colloquies, the colloquies are reviewed for plain
error. United States v. Martinez, 277 F.3d 517, 524-27 (4th
Cir. 2002). To demonstrate plain error, a defendant must show
that: (1) there was an error; (2) the error was plain; and
(3) the error affected his “substantial rights.” United
States v. Olano, 507 U.S. 725, 732 (1993). To establish that a
Rule 11 error has affected a defendant’s substantial rights, the
defendant 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).
Our review of the plea colloquy transcripts reveals
that the district court failed to inform both appellants that
they faced a mandatory minimum sentence of life imprisonment, as
required by Fed. R. Crim. P. 11(b)(1), which constitutes plain
error. United States v. General, 278 F.3d 389, 394 (4th Cir.
2002). However, we conclude that the error does not affect the
appellants’ substantial rights, as the record reveals that both
appellants were aware that they faced a mandatory minimum term
of life imprisonment prior to pleading guilty. The appellants
stipulated in their respective plea agreements that they each
had two prior felony drug convictions, subjecting them to a
mandatory minimum term of life imprisonment pursuant to 21
U.S.C. § 851. In addition, the Government reiterated this
information during the Rule 11 colloquies when reviewing the
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plea agreements. While Lee argues on appeal that the district
court’s failure to inform him of the mandatory minimum sentence
renders his guilty plea invalid, he does not assert that, but
for this error, he would not have pled guilty. Moreover, the
record does not reflect that any lack of understanding of the
mandatory minimum affected Lee’s or Goldsmith’s decision to
enter a guilty plea. Notwithstanding the failure to inform the
appellants of the applicable mandatory minimum sentence, the
court otherwise complied with Rule 11 at both hearings.
Although the court did not specifically elicit an oral plea from
the appellants, this is not required by Rule 11, and the
appellants confirmed their desire to plead guilty by signing a
written plea during the Rule 11 hearing. The court ensured that
Lee’s and Goldsmith’s guilty pleas were knowing and voluntary,
that they understood the rights they were giving up by pleading
guilty, and that they committed the offense to which they pled
guilty.
We next address the reasonableness of the sentences.
We review a sentence for procedural and substantive
reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). In determining
the procedural reasonableness of a sentence, this court
considers whether the district court properly calculated the
Guidelines range, treated the Guidelines as advisory, considered
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the § 3553 factors, analyzed any arguments presented by the
parties, and sufficiently explained the selected sentence. Id.
at 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) (internal quotation marks omitted).
We assess the substantive reasonableness of the
sentence by “taking into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range.” United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007) (internal quotation marks and citation omitted).
We presume that a below-Guidelines sentence is reasonable.
United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). That
this court would have imposed a different sentence is not reason
alone to vacate the district court’s sentence. United States v.
Morace, 594 F.3d 340, 346 (4th Cir. 2010).
We conclude that the district court committed neither
procedural nor substantive error in sentencing. The court
accurately stated the statutory mandatory sentence of life
imprisonment that applied to Lee and Goldsmith before
consideration of the Government’s motion for a downward
departure, verified that the appellants had reviewed and
discussed the presentence report with their attorneys, and
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entertained arguments from both appellants for a particular
sentence. In addition, the appellants’ sentences were properly
enhanced pursuant to 21 U.S.C. § 851, contrary to their
arguments on appeal, as they each had at least two prior
qualifying felony drug convictions. Lee was likewise properly
classified as a career offender. Although Goldsmith asserts
that he was erroneously designated a career offender, our review
of the record indicates that he was not, in fact, classified or
sentenced as a career offender. Accordingly, his argument is
without merit.
In their pro se briefs, Lee and Goldsmith both assert
that their trial counsel rendered ineffective assistance.
Claims of ineffective assistance of counsel are generally not
cognizable on direct appeal, unless the record conclusively
establishes counsel’s “objectively unreasonable performance” and
resulting prejudice. United States v. Benton, 523 F.3d 424, 435
(4th Cir. 2008). The record does not conclusively establish
that trial counsel rendered ineffective assistance to either
appellant. Lee and Goldsmith must therefore bring their
allegations of ineffective assistance of counsel in a 28
U.S.C.A. § 2255 (West Supp. 2012) motion, should they wish to
pursue such claims. United States v. Baptiste, 596 F.3d 214,
216 n.1 (4th Cir. 2010).
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In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none. We therefore
affirm the district court’s judgment. This court requires that
counsel inform Lee and Goldsmith, in writing, of their right to
petition the Supreme Court of the United States for further
review. If Lee or Goldsmith requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Lee and Goldsmith. 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
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