UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4483
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFREY BERNARD JOYNER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
Chief District Judge. (4:11-cr-00078-D-1)
Submitted: May 31, 2013 Decided: June 27, 2013
Before AGEE, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. H. Paramore, III, W. H. PARAMORE, III, P.C., Jacksonville,
North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:
Pursuant to his written plea agreement, Jeffrey
Bernard Joyner pled guilty to possession with intent to
distribute twenty-eight grams or more of crack cocaine and an
unspecified quantity of powder cocaine, in violation of 21
U.S.C. § 841(a)(1) (2006). Joyner was subsequently sentenced to
126 months’ imprisonment. This appeal followed.
Counsel for Joyner has filed his brief pursuant to
Anders v. California, 386 U.S. 738 (1967), averring that there
are no nonfrivolous issues for appeal, but questioning the
substantive reasonableness of the 126-month departure sentence.
In his pro se supplemental brief, Joyner challenges the validity
of both the superseding indictment and his guilty plea. For the
following reasons, we affirm the judgment.
I.
We review any criminal sentence, “whether inside, just
outside, or significantly outside the Guidelines range,” for
reasonableness, “under a deferential abuse-of-discretion
standard.” United States v. King, 673 F.3d 274, 283 (4th Cir.),
cert. denied, 133 S. Ct. 216 (2012); see Gall v. United States,
552 U.S. 38, 46, 51 (2007). When the district court imposes a
departure or variance sentence, this court considers “whether
the sentencing court acted reasonably both with respect to its
decision to impose such a sentence and with respect to the
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extent of the divergence from the sentencing range.” United
States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007). The district court “has flexibility in fashioning a
sentence outside of the Guidelines range,” and need only “‘set
forth enough to satisfy the appellate court that it has
considered the parties’ arguments and has a reasoned basis’” for
its decision. United States v. Diosdado-Star, 630 F.3d 359, 364
(4th Cir.) (quoting Rita v. United States, 551 U.S. 338, 356
(2007)) (alteration omitted), cert. denied, 131 S. Ct. 2946
(2011).
In reviewing the substantive reasonableness of a
sentence, this court assesses “whether the District Judge abused
his discretion in determining that the [18 U.S.C.] § 3553(a)
[(2006)] factors supported [the sentence] and justified a
substantial deviation from the Guidelines range.” Gall, 552
U.S. at 56. We must “take into account the totality of the
circumstances, including the extent of [the] variance from the
Guidelines range.” Id. at 51. A more significant “departure
should be supported by a more significant justification.” Id.
at 50.
Although counsel only challenges the substantive
reasonableness of Joyner’s sentence, because this is an Anders
appeal, we have also reviewed the procedural reasonableness of
the sentence and have discerned no procedural infirmity. The
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district court properly calculated Joyner’s advisory Guidelines
range and cited Joyner’s extensive history of undeterred violent
criminality and chronic recidivism to justify its upward
departure pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
§ 4A1.3, p.s. (2011). United States v. Dalton, 477 F.3d 195,
198 (4th Cir. 2007). The 126-month sentence was twenty-one
months longer than the top of Joyner’s pre-departure Guidelines
range. In light of the court’s reasons for the upward
departure, we readily conclude that the extent of this departure
is reasonable. See United States v. Blakeney, 499 F. App’x 238,
243 (4th Cir. 2012) (unpublished after argument) (concluding
that the district court’s “explanations for the sentence it
imposed” after upwardly departing under § 4A1.3 “were sufficient
to justify the extent of the departure”). Finally, the sentence
is procedurally sound in that the court permitted the parties to
argue in favor of a particular sentence, allowed Joyner to
allocute, considered those arguments, and individually assessed
this defendant in light of the relevant sentencing factors.
Counsel contends that the sentence is substantively
unreasonable because the district court failed to account for
Joyner’s “meaningful and important” assistance to the police.
(Anders Br. at 10). The transcript of the sentencing hearing,
however, belies this contention. The transcript reveals that,
although the Government did not deem Joyner’s cooperation
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significant enough to warrant a USSG § 5K1.1 motion, the court
nonetheless credited that effort in selecting its sentence. We
therefore reject Joyner’s challenge to the substantive
reasonableness of the sentence.
To fulfill our Anders duty, we have evaluated the
entirety of the record and found no nonfrivolous basis on which
to otherwise contest the substantive reasonableness of Joyner’s
sentence. Given the totality of circumstances present in this
case, we readily defer “to the district court’s decision that
the § 3553(a) factors, on a whole, justify the extent of the
variance.” Gall, 552 U.S. at 51. Accordingly, we affirm
Joyner’s sentence.
II.
Joyner, in his pro se supplemental brief, challenges
the validity of the superseding indictment and argues his guilty
plea was not knowingly entered. But a counseled guilty plea
waives all antecedent, nonjurisdictional defects not logically
inconsistent with the establishment of guilt, United States v.
Bowles, 602 F.3d 581, 582 (4th Cir. 2010), unless the defendant
can show that his plea was not voluntary and intelligent because
the advice of counsel “was not within the range of competence
demanded of attorneys in criminal cases.” Tollett v. Henderson,
411 U.S. 258, 266 (1973) (internal quotation marks omitted).
Here, Joyner entered a counseled guilty plea and has not alleged
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that his plea was rendered involuntary by counsel’s ineffective
assistance. Moreover, the alleged defect in the indictment is
not jurisdictional. See United States v. Cotton, 535 U.S. 625,
631 (2002). We therefore reject this claim.
Joyner next argues that his guilty plea was not
knowingly and intelligently entered because the district court
did not explain that the threshold drug quantity, an element of
the aggravated offense, was satisfied by aggregating drug
quantities from several instances and/or controlled
transactions. Joyner maintains that he should have been charged
under 21 U.S.C. § 841(b)(1)(C) (2006), which has no mandatory
minimum sentence and a twenty-year statutory maximum sentence.
Joyner concedes that, because he did not raise this issue in the
district court, this court’s review is for plain error only. To
establish plain error, Joyner must show that an error occurred,
that the error was plain, and that the error affected his
substantial rights. United States v. Olano, 507 U.S. 725, 732,
734 (1993).
We have not found any Fourth Circuit or Supreme Court
authority that addresses whether the district court’s failure to
apprise Joyner of the aggregation necessary to achieve the
threshold drug quantity is error such that it would undermine
his guilty plea. Thus, any potential error by the district
court cannot be considered “plain.” United States v. Beasley,
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495 F.3d 142, 149-50 (4th Cir. 2007); see Olano, 507 U.S. at 734
(explaining that “plain” error “is synonymous with clear
or . . . obvious” error (internal quotation marks omitted)).
Joyner’s challenge to the validity of his guilty plea
also fails because it is contrary to his sworn statements at the
Fed. R. Crim. P. 11 hearing. At two separate times during the
hearing, the district court explained that Count Two charged
Joyner with possession with intent to distribute twenty-eight
grams or more of cocaine base between January and May 2011. At
no point did Joyner express any confusion about this element or
otherwise identify any concern about how the offense was
charged. To the contrary, Joyner testified that he understood
the charge and that he was in fact guilty as charged.
Absent compelling evidence to the contrary, “the truth
of sworn statements made during a Rule 11 colloquy is
conclusively established.” United States v. Lemaster, 403 F.3d
216, 221-22 (4th Cir. 2005); see Blackledge v. Allison, 431 U.S.
63, 74 (1977) (holding that a defendant’s declarations at the
Rule 11 hearing “carry a strong presumption of verity”).
Because of that strong presumption and without more, Joyner’s
claim that he did not understand this element does not support
vacating his conviction.
In accordance with Anders, we have reviewed the entire
record in this case and have identified no meritorious issues
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for appeal. The district court complied with the requirements
of Rule 11(b), ensuring that Joyner’s guilty plea was knowing
and voluntary and supported by an independent basis in fact.
Accordingly, we affirm the criminal judgment.
This court requires that counsel inform Joyner, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Joyner 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 Joyner. 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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