United States v. Carter

87 F.4th 217

UNITED STATES of America, Plaintiff - Appellee, v. Richard Lavar CARTER, Defendant - Appellant.

No. 21-4442

United States Court of Appeals, Fourth Circuit

Argued: September 22, 2023

Decided: November 21, 2023

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:20-cr-00178-BR-1)

ARGUED: Andrew DeSimone, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. John Gibbons, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before WYNN, QUATTLEBAUM, and HEYTENS, Circuit Judges.

Affirmed in part, dismissed in part by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Wynn and Judge Heytens joined.

QUATTLEBAUM, Circuit Judge:

After committing armed robbery with an unidentified accomplice, Richard Lavar Carter pled guilty to Hobbs Act robbery and a firearm charge pursuant to an agreement with the government. At sentencing, the district court warned that Carter's decision to name his accomplice would be a "critical part" of its sentencing determination. J.A. 59. When Carter declined to name his accomplice, the district court imposed a sentence at the top of Carter's Sentencing Guidelines range.

On appeal, Carter asserts that the district court violated his Fifth Amendment privilege against self-incrimination by imposing a harsher sentence due to his failure to identify his accomplice and drawing adverse inferences from that failure. He further alleges that this Fifth Amendment violation rendered his sentence procedurally and substantively unreasonable. In addition to arguing against the merits of these challenges, the government moves to dismiss Carter's appeal based on the appellate waiver in his plea agreement. For the reasons below, we grant the government's motion to dismiss Carter's appeal to the extent he challenges the reasonableness of his sentence. We otherwise affirm.

I.

A.

We first recount the events that led to Carter's conviction and sentence. In the early morning hours of October 15, 2019, a man wearing a black bandana over his face and carrying a handgun entered a Waffle House in Johnston County, North Carolina. While racking the slide of his handgun and ejecting a live bullet, the man ordered the employees to open the cash register. After grabbing money from the register, the man fled the restaurant. About an hour later, two men dressed in all black robbed a New Dixie Mart convenience store in the same county. One man brandished a handgun, while the other brandished an "AK style" rifle. J.A. 95. The man with the handgun struck one of the employees with his handgun, leaving an impression of what looked to be a portion of the firearm's serial number. The men forced the employees into a corner of the store. They then ordered one employee to open the cash register. After that, they took the money from the register and fled.

Noticing the similarities between the robberies, the police showed the Waffle House employees the surveillance footage of the New Dixie Mart robbery. Having recognized their assailant as Carter, their former co-worker, the Waffle House employees also identified Carter as the man with the handgun in the New Dixie Mart footage. The state soon filed several charges against Carter, resulting in a warrant for Carter's arrest. Carter turned himself in, but his accomplice was never identified.

B.

The state dropped its charges against Carter after a federal grand jury returned an indictment charging him with two counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), two counts of brandishing a firearm during a crime of violence, in violation of § 924(c)(1)(A)(ii), and one count of felon in possession of ammunition, in violation of §§ 922(g)(1), 924. Pursuant to an agreement with the government, Carter pled guilty to one count of Hobbs Act robbery based on the New Dixie Mart robbery and one count of brandishing a firearm based on the Waffle House robbery. Carter's plea agreement also contained an appellate waiver provision under which Carter agreed to waive his rights to appeal his conviction and sentence "on any ground, including any appeal pursuant to 18 U.S.C. § 3742," except post-conviction claims of ineffective assistance of counsel or prosecutorial misconduct. J.A. 81. In return, the government agreed to dismiss Carter's three remaining charges and not further prosecute Carter for conduct underlying the indictment.

The district court later held a plea hearing as required by Federal Rule of Criminal Procedure 11. After the district court found him competent to enter a plea, Carter affirmed that he was "absolutely sure" he wanted to plead guilty and had not been forced or threatened to enter a plea. J.A. 27. He also confirmed that he reviewed the plea agreement with his attorney before signing it. The district court then summarized the terms of his plea agreement, including Carter's appellate waiver. In doing so, the district stated, "[Y]ou've waived your right to appeal your sentence and conviction on any ground, including -- excuse me. Strike that. You've also waived your right to appeal your sentence in any post-conviction proceeding." J.A. 31. Carter affirmed that the district court "fairly and accurately summarized the terms and conditions of [the] plea agreement as [he] underst[ood] it." J.A. 31-32.

Finding that Carter possessed a "full and complete understanding of the nature of the charges and the maximum penalties provided by law, and that a factual basis exist[ed] for the plea," the district court accepted Carter's guilty plea. J.A. 34-35.

C.

A few months later, Carter returned to the district court for sentencing. The district court determined Carter's Sentencing Guidelines range to be 51 to 63 months for his robbery conviction, which was to run consecutive to the statutory minimum of 84 months for his firearm conviction. In total, Carter faced a Guidelines range of 135 to 147 months.

Carter's attorney asked the district court for a downward variance based on considerations relevant to 18 U.S.C. § 3553(a) factors, including Carter's work ethic and history of substance abuse, as well as his limited criminal history, which, according to his attorney, indicated that Carter's current offenses were out of character. The government argued against a downward variance, imploring the district court to consider the nature of the robberies, the work ethic of the employees whom Carter robbed and the escalation in Carter's criminal conduct. For the same reasons, the government requested that Carter be sentenced at the top of his Guidelines range.

Following allocution, the district court asked the government if it had apprehended Carter's accomplice in the New Dixie Mart robbery. When the government informed the district court that it had never identified Carter's accomplice, the district court asked if Carter had been "interviewed about it." J.A. 59. The government stated its understanding that "Carter advised he did not know or did not choose to speak to that matter" when interviewed by police. J.A. 59. The district court told Carter's attorney, "[T]hat's a very critical part of this Court's decision. Do you want to talk to your client, or do you feel comfortable answering the question now?" J.A. 59-60. After conferring with Carter, Carter's attorney explained, "They did ask him about the robberies. But at the same time they were asking him -- they presented him with the paperwork for obtaining a lawyer, and he requested to have a lawyer." J.A. 60. Carter's attorney further noted that the parties did not sign a cooperation plea, so Carter had "not been asked in the context of this case who that person was . . . ." J.A. 60.

The district court then asked Carter, "Do you want to tell me who your accomplice was?" J.A. 60-61. Carter replied, "No, sir." J.A. 61. Immediately after Carter's response, the district court denied his request for a downward variance. Specifically rejecting Carter's arguments based on work ethic and aberrant behavior, the district court explained "that the government has effectively rebutted and pointed out to the Court reasons why a variant sentence should not be imposed." J.A. 61.

The district court then stated:

All sentencings are tough. This one is particularly tough because of the choice made by the defendant to protect his co-defendant. The fact that he refuses even now when he's facing significant prison time to reveal who his co-defendant was shows me a complete and utter disregard of any care for society and for the other people who are in society, including his own mother sitting back there. It shows a disrespect for her; it shows a disrespect for the court system. It's just mind-boggling to me that the defendant continues to protect somebody who does not need or show any reason for protection. I've been trying to think of a reason why you might be protecting someone else, and the only reason I can think of is fear that whoever was armed with that automatic weapon or semiautomatic weapon who participated jointly with the defendant in those robberies is still out there and he . . . could have made threats against this defendant. But he chose to -- chooses at this time to yield to rather than doing the right thing and revealing who the other person was.

Now, I may be getting myself into trouble here; I don't know. And I'm sure [Carter's attorney] is going to present this, or somebody will, to the Fourth Circuit Court of Appeals. But we'll see what they have to say about me using this as a basis for what I'm going to do.

I'm not going to impose an upward departure. I am going to impose a

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