United States v. Copeland

• Decision Date: 25 February 2013
• Docket Number: No. 11–4654.,11–4654.
• Citation: 707 F.3d 522
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Larry Junior COPELAND, a/k/a La-la, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

707 F.3d 522

UNITED STATES of America, Plaintiff–Appellee,

v.Larry Junior COPELAND, a/k/a La-la, Defendant–Appellant.

No. 11–4654.

United States Court of Appeals,Fourth Circuit.

Argued: Dec. 7, 2012.

Decided: Feb. 25, 2013.

ARGUED:Seth Allen Neyhart, Stark Law Group, PLLC, Chapel Hill, North Carolina, for Appellant. Kristine L. Fritz, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:Thomas G. Walker, United States Attorney, Jennifer P. May–Parker, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before MOTZ, DUNCAN, and WYNN, Circuit Judges.

Dismissed in part and affirmed in part by published opinion. Judge DUNCAN wrote the opinion, in which Judge MOTZ and Judge WYNN joined.

OPINION

DUNCAN, Circuit Judge:

Larry Junior Copeland pleaded guilty to distributing five or more grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). As part of his plea agreement, Copeland waived his right to appeal. Despite the waiver, Copeland now argues that the district court incorrectly calculated the applicable Sentencing Guidelines range and imposed an “illegal” and substantively unreasonable sentence. He also contends that the district court's denial of his motion to continue his sentencing hearing was an abuse of discretion, and that his attorney's failure to make a pre-hearing motion for a continuance constituted ineffective assistance of counsel. The government seeks to enforce Copeland's appeal waiver and has moved to dismiss this appeal. For the reasons that follow, we grant the government's motion to dismiss with regard to the sentencing issues that fall within the scope of Copeland's valid appeal waiver and affirm as to his contentions regarding the continuance.

I.

A.

After Copeland sold 28.7 grams of cocaine and 39.2 grams of crack cocaine to a confidential informant in early 2010, the government charged him, on June 2, 2010, with one count of distributing five or more grams of cocaine (Count One) and one count of distributing five or more grams of crack cocaine (Count Two), both in violation of 21 U.S.C. § 841(a)(1). Subsequently, on June 28, 2010, the government provided Copeland notice, as required by 21 U.S.C. § 851, of its intent to seek an enhanced sentence under 21 U.S.C. § 841(b)(1)(B), based on Copeland's “prior conviction for a felony drug offense.” ¹

On February 22, 2011, Copeland pleaded guilty to Count Two, distribution of five or more grams of crack cocaine. The parties memorialized their plea agreement in a six-page document in which the government agreed to move to dismiss Count One. In paragraph 2c of that agreement, Copeland consented:

To waive knowingly and expressly the right to appeal whatever sentence is imposed, including any appeal pursuant to 18 U.S.C. § 3742, reserving only the right to appeal from a sentence in excess of the applicable advisory guideline range that is established at sentencing, and further to waive any right to contest the conviction or the sentence in any post-conviction proceeding, including any proceeding under 28 U.S.C. § 2255, excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of the Defendant's guilty plea.

S.J.A. 78–79. The waiver provision reserved the government's right to appeal. Id. at 79 (“The foregoing appeal waiver does not constitute or trigger a waiver by the United States of any of its rights to appeal provided by law.”). The agreement also set out the statutory sentencing ranges mandated by § 841(b)(1)(b): a five- to forty-year term of imprisonment and at least four years of supervised release for distribution of five or more grams of crack cocaine, increased to ten years to life imprisonment and at least eight years of supervised release by the statutory enhancement. Id. at 80–81. The agreement states that “even if a sentence up to the statutory maximum is imposed, the Defendant may not withdraw the plea of guilty.” Id. at 81.

Before accepting Copeland's plea, the district court explained the sentencing ranges and the appeal waiver and questioned Copeland as to his understanding of those terms. The court first addressed a group of defendants, including Copeland, instructing them to make sure they “heard and understood” the court's comments. J.A. 21. Copeland indicated that he was represented by counsel, with whom he had discussed his case, and that he was “completely and fully satisfied with [her] legal services.” Id. at 31. During the subsequent individual plea colloquy, the district court questioned Copeland as to his age and education level, which Copeland indicated included some college experience, and confirmed that Copeland recognized the import of his guilty plea.

After finding Copeland competent to proceed, the court explained that potential sentences included “not less than five years imprisonment, no more than forty years imprisonment, [and] at least four years of supervised release,” but if Copeland was “subject to the enhancement under 21 U.S.C. § 851” “the potential penalties increase to a maximum term of imprisonment of life, a minimum term of imprisonment of ten years, [and] a minimum term of supervised release of eight years.” J.A. 36–37. Copeland indicated his understanding of the potential penalties. He then confirmed that he had “read and discuss[ed] [the] entire plea agreement with [his] lawyer” before signing it and “underst[ood] each term” in it. Id. at 39.

The district court then specifically addressed Copeland's appeal waiver by reading it aloud and asking Copeland if he “underst[ood] the appellate rights [he was] giving up in that paragraph.” J.A. 40. Copeland replied, “Yes, sir.” Id. The court cautioned that the plea contained no promise of a particular sentence and that Copeland could receive the statutory maximum. The court then accepted Copeland's guilty plea, finding it “freely and voluntarily” entered. Id. at 45.

B.

Before his June 9, 2011 sentencing hearing, the government relied on two of Copeland's prior state felonies to enhance the applicable statutory sentencing and advisory Guidelines ranges.

First, the government relied on Copeland's 2008 North Carolina conviction for felony possession of cocaine as a “prior conviction for a felony drug offense” to enhance the statutory sentencing range to ten years to life.² J.A. 13, 14a. Second, in preparing the PSR, the probation officer designated Copeland a “career offender” under United States Sentencing Guidelines § 4B1.1, based on two more prior felonies: a different 2008 North Carolina cocaine possession and manufacture felony ³ and a 1999 felony for assault with a deadly weapon.⁴ The career offender designation increased Copeland's Guidelines range from 70 to 87 months to 188 to 235 months.

Although Copeland could have received a maximum of ten months' imprisonment for each of the two state drug-related felonies, under our then-circuit precedent in United States v. Harp, a defendant's federal sentence could be enhanced based on conviction for a state felony “punishable” by more than one year of imprisonment if “ any defendant charged with that crime could receive a sentence of more than one year,” even if the defendant himself could not receive such a sentence. United States v. Harp, 406 F.3d 242, 246 (4th Cir.2005) (emphasis in original).

C.

Two months after Copeland's sentencing hearing, we overruled Harp and held that we must examine the sentence the defendant could have actually received when determining whether a state conviction can serve as a predicate felony for federal sentencing enhancement. United States v. Simmons, 649 F.3d 237 (4th Cir.2011) (en banc). That is, if a particular defendant “ ‘could not have received a sentence in excess of twelve months' for his [state] conviction,” the government cannot use it as a predicate for federal sentencing enhancement purposes. Id. at 239–40, 249 (quoting United States v. Simmons, 340 Fed.Appx. 141, 143 (4th Cir.2009)).

Copeland now argues, and the government concedes, that he no longer qualifies for the sentencing enhancements he received under § 841 and § 4B1.1 because the two drug-related state felonies the government used as predicates no longer qualify as felonies, as Copeland “ ‘could not have received a sentence in excess of twelve months' ” for those convictions. Id. at 239–40.

D.

At Copeland's June 9, 2011 sentencing hearing, the district court accepted the PSR as accurate. Copeland did not file written objections to the PSR, and when asked for objections at the hearing, Copeland's counsel said:

[T]he only thing I would like to do is just to preserve for the record Paragraph 18. I was hoping that the Simmons rehearing would come back before now. Just at that Paragraph 18 that makes him a career offender ... I would just like to preserve for the record that I would like to object to that.

J.A. 58. The court overruled the objection in light of our precedent in Harp and speculated that the Supreme Court's then three-day old ruling in McNeill v. United States, ––– U.S. ––––, 131 S.Ct. 2218, 180 L.Ed.2d 35 (2011), might affect our then-pending en banc opinion in Simmons.

At that point, the government noted that the PSR incorrectly set the statutory penalty range at five to forty years; with the statutory sentencing enhancement, the PSR should have set the range at ten years to life. After the government clarified the correct statutory range, counsel for Copeland moved to continue the sentencing for two reasons: first, because Copeland claimed he was not “prepared for the 10 to life” sentence and second, because counsel stated she and Copeland were unfamiliar with McNeill. J.A. 60.

The district court found “no reason to continue” based on counsel's unfamiliarity with McNeill, as her objection to Copeland's classification as a career offender had been preserved in her objection about Simmons and Paragraph...