United States v. Larry Copeland

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

 No. 11-4654

LARRY JUNIOR COPELAND, a/k/a

La-la,

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of North Carolina, at Wilmington.

James C. Dever III, Chief District Judge.

(7:10-cr-00066-D-1)

Argued: December 7, 2012

Decided: February 25, 2013

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.

COUNSEL

ARGUED: Seth Allen Neyhart, STARK LAW GROUP,

PLLC, Chapel Hill, North Carolina, for Appellant. Kristine L.

Fritz, OFFICE OF THE UNITED STATES ATTORNEY,

2 UNITED STATES v. COPELAND

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 Appel-

lee.

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 sen-

tencing hearing was an abuse of discretion, and that his attor-

ney’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 continu-

ance.

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

UNITED STATES v. COPELAND 3

one count of distributing five or more grams of crack cocaine

(Count Two), both in violation of 21 U.S.C. § 841(a)(1). Sub-

sequently, on June 28, 2010, the government provided Cope-

land 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 docu-

ment in which the government agreed to move to dismiss

Count One. In paragraph 2c of that agreement, Copeland con-

sented:

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 estab-

lished 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

1

A felony drug offense is "an offense that is punishable by imprison-

ment for more than one year under any law of the United States or of a

State." 21 U.S.C. § 802(44).

4 UNITED STATES v. COPELAND

§ 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 indi-

cated that he was represented by counsel, with whom he had

discussed his case, and that he was "completely and fully sat-

isfied with [her] legal services." Id. at 31. During the subse-

quent 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 Cope-

land 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

UNITED STATES v. COPELAND 5

"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 partic-

ular 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 desig-

nated Copeland a "career offender" under United States Sen-

tencing Guidelines § 4B1.1, based on two more prior felonies:

a different 2008 North Carolina cocaine possession and manu-

facture felony3 and a 1999 felony for assault with a deadly

weapon.4 The career offender designation increased Cope-

2

The 2008 North Carolina felony conviction, located in Copeland’s Pre-

Sentence Report ("PSR") at Paragraph 14, carried a minimum sentence of

eight months and a maximum sentence of ten months. J.A. 14a; S.J.A. 89.

3

Copeland also received eight to ten months’ imprisonment for the 2008

North Carolina conviction for felony possession and manufacture of

cocaine, listed at Paragraph 18 of the PSR. S.J.A. 90, 95.

4

Under § 4B1.1:

A defendant is a career offender if (1) the defendant was at least

eighteen years old at the time the defendant committed the instant

offense of conviction; (2) the instant offense of conviction is a

felony that is either a crime of violence or a controlled substance

offense; and (3) the defendant has at least two prior felony con-

victions of either a crime of violence or a controlled substance

offense.

U.S.S.G. § 4B1.1(a).

6 UNITED STATES v. COPELAND

land’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 over-

ruled 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 enhance-

ment purposes. Id. at 239-40, 249 (quoting United States v.

Simmons, 340 F. App’x 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

UNITED STATES v. COPELAND 7

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 pre-

cedent in Harp and speculated that the Supreme Court’s then

three-day old ruling in McNeill v. United States, 131 S. Ct.

2218 (2011), might affect our then-pending en banc opinion

in Simmons.

At that point, the government noted that the PSR incor-

rectly 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 pre-

served in her objection about Simmons and Paragraph 18 of

the PSR. J.A. 60. With respect to the applicable sentencing

range, the district court ruled that the government had pro-

vided § 851 notice to Copeland of its intent to seek the

enhanced range and had included the ten to life range in the

signed plea agreement. The court explained that the enhanced

range would not "change by continuing this matter." Id. at 60.

8 UNITED STATES v. COPELAND

After announcing the Guidelines range as 188 to 235

months, the court heard statements from defense counsel, the

government, and Copeland himself before turning to the

applicable sentence. The court stated that it had "considered

all arguments that [defense counsel] made on [Copeland’s]

behalf" as well as Copeland’s statement and the Guidelines

range. J.A. 66. It turned to the 18 U.S.C. § 3553(a) sentencing

factors, noting that it had "considered all those factors" even

if it did not "mention each one individually." Id. at 67. The

court found the "nature and circumstances of the offense" to

be "serious." Id. It noted that Copeland was intelligent and

had some vocational skills, but had not "really worked at an

honest job" and had "made . . . money other ways." Id. The

court indicated concern that Copeland had "been convicted of

a variety of felonies," "includ[ing] violent conduct," id. at 68,

and also recognized Copeland’s need for drug treatment. At

that point, "having fully considered the entire record, the

arguments of counsel, [and Copeland’s] statement" the court

announced a mid-range sentence of 216 months and a term of

supervised release of eight years.5 Id. at 68-69, 71. The court

also announced an alternative variant sentence:

I do announce that having fully considered the entire

record in this case, that even if there has been a mis-

calculation of the advisory guideline range pursuant

to United States v. Keene, 470 F.3d 1347 (11th Cir.

2006) and the Fourth Circuit’s decision in United

States v. Savillon-Matute, which was issued on Feb-

ruary 18, 2011, the court announces an alternative

variant sentence. I would impose the very same sen-

tence even if I have incorrectly calculated the advi-

5

In its brief and at oral argument, the government contended that the

district court exceeded its statutory authority in sentencing Copeland to

eight years of supervised release and asked that his term of release be

reduced to three years. Appellee’s Br. at 24 n.4. After oral argument, the

government moved to submit supplemental briefing retracting its conces-

sion and request regarding the term of supervised release, which we

granted. Notably, Copeland did not file a response.

UNITED STATES v. COPELAND 9

sory guideline range, having fully considered all the

3553(a) factors.

Id. at 70. The court reminded Copeland that he had waived his

right to appeal. Id. at 71. This appeal followed.

II.

On appeal, Copeland contends that the district court erred

in classifying him as a career offender and that his 216-month

sentence is substantively unreasonable. Specifically, Cope-

land argues that, in light of Simmons, he should not have been

subject to the enhanced statutory sentencing range under

§ 841(b)(1)(B) or designation as a career offender under

§ 4B1.1, since he could not have received more than one year

of imprisonment for the state felonies used as predicates for

the enhancements. Copeland also contends that, because the

district court exceeded its authority by imposing an "illegal"

eight-year term of supervised release, his appeal falls outside

the scope of his waiver. He argues that the district court

abused its discretion in denying his motion for a continuance

of his sentencing hearing, and that his counsel’s failure to

make a pre-hearing motion to continue the sentencing consti-

tuted ineffective assistance. We address the threshold question

of whether Copeland’s appeal waiver precludes him from pre-

senting his sentencing arguments, and find that it does. We

then turn to his contentions regarding the continuance.

A.

We first examine whether Copeland entered a valid waiver.

We review the validity of an appeal waiver de novo, and "will

enforce the waiver if it is valid and the issue appealed is

within the scope of the waiver." United States v. Davis, 689

F.3d 349, 355 (4th Cir. 2012) (citing United States v. Blick,

408 F.3d 162, 168 (4th Cir. 2005)).

"A defendant may waive the right to appeal his conviction

and sentence so long as the waiver is knowing and voluntary."

10 UNITED STATES v. COPELAND

Id. at 354 (4th Cir. 2012) (citation omitted). Although the

validity of an appeal waiver often depends on the adequacy of

the plea colloquy, "the issue ultimately is evaluated by refer-

ence to the totality of the circumstances." Blick, 408 F.3d at

169 (internal quotation omitted). "Generally, if a district court

questions a defendant regarding the waiver of appellate rights

during the Rule 11 colloquy and the record indicates that the

defendant understood the full significance of the waiver, the

waiver is valid." United States v. Thornsbury, 670 F.3d 532,

537 (4th Cir. 2012).

Here, the record establishes that Copeland knowingly and

intelligently waived his right to appeal. During the plea collo-

quy, Copeland affirmed that he had "read and discuss[ed]

[the] entire plea agreement with [his] lawyer" before signing

it, and that he "underst[ood] each term" in it. J.A. 39. After

explaining the potential penalties to Copeland, the district

court read the appeal waiver aloud and questioned Copeland

as to whether he "underst[ood] the appellate rights [he was]

giving up in that paragraph." Id. at 40. Copeland replied that

he did. Id. Therefore, we find Copeland’s appeal waiver valid.

B.

1.

We next consider whether Copeland’s sentencing challenge

falls within the scope of his valid appeal waiver. Copeland

primarily contends that the fact that the applicable Guidelines

range would have been lower under Simmons renders the dis-

trict court’s 216-month sentence substantively unreasonable.

The government responds that issues related to the appropri-

ate Guidelines range "fall[ ] squarely within the scope of

[Copeland’s] appeal waiver." Appellee’s Br. at 19.

We agree. We addressed the ongoing validity of an appeal

waiver in light of a subsequent change in the law in Blick.

There, the defendant entered his plea agreement and received

UNITED STATES v. COPELAND 11

his sentence before the Supreme Court decided United States

v. Booker, 545 U.S. 220 (2005), which rendered the Sentenc-

ing Guidelines advisory. 408 F.3d at 170. Blick argued that he

should be resentenced in light of Booker, despite the fact that

the appeal waiver in his plea agreement barred him from

appealing "any sentence within the maximum provided in the

statute of conviction." Id. at 169. We dismissed Blick’s claim

as within the scope of his valid appeal waiver, holding that

"[a]lthough the law changed after Blick pled guilty, his expec-

tations (as reflected in the plea agreement) did not." Id. at

173. Indeed, "Blick was sentenced precisely in the manner

that he anticipated." Id. We emphasized that "[p]lea bargains

rest on contractual principles" and noted that "each party

should receive the benefit of its bargain," id. (internal citation

and quotation omitted), such that a party "cannot . . . ask to

re-bargain the waiver of his right to appeal because of

changes in the law," id. at 170 (quoting United States v.

Lockett, 406 F.3d 207, 214 (3d Cir. 2005)).

Further, in United States v. Brown, we addressed an appeal

waiver in which the defendant waived his right to appeal

"whatever sentence is imposed on any ground, including any

appeal pursuant to 18 U.S.C. § 3472," the statute that "pro-

vides for ‘review of an otherwise final sentence if the sen-

tence . . . was imposed as a result of an incorrect application

of the guidelines.’" 232 F.3d 399, 404 (4th Cir. 2000) (quot-

ing 18 U.S.C. § 3742(a)(2)). We found Brown’s subsequent

challenge to his classification as a career offender under

U.S.S.G. § 4B1.1 within the scope of his appeal waiver

because Brown "expressly waived his right to appeal what-

ever sentence the court imposed, ‘including’ one based on an

asserted ‘incorrect application’ of the Guidelines." Id. at 404.

Copeland’s argument that he should receive the benefit of

Simmons on appeal is analytically indistinguishable from

those in Blick and Brown. Copeland expressly waived "the

right to appeal whatever sentence is imposed, including any

appeal pursuant to 18 U.S.C. § 3742, reserving only the right

12 UNITED STATES v. COPELAND

to appeal from a sentence in excess of the applicable advisory

guideline range that is established at sentencing." J.A. 78

(emphasis added). Like Blick, Copeland was sentenced within

the appropriate Guidelines range established at the time of

sentencing, "precisely in the manner he anticipated." 408 F.3d

at 173. Copeland cannot invalidate his appeal waiver now to

claim the benefit of subsequently issued case law. Id. Like

Brown, his claims amount to a Guidelines challenge he

waived by limiting his right to appeal only "from a sentence

in excess of the applicable advisory guideline range that is

established at sentencing." We are thus compelled to conclude

that Copeland’s claims regarding the application of Simmons

fall within the scope of his valid appeal waiver.6

2.

In addition to arguing that the Guidelines range should

have been adjusted under Simmons, Copeland also contends

that the eight-year term of supervised release he received in

addition to his term of incarceration "exceeded the District

Court’s statutory authority" so as to render his sentence "ille-

gal." Appellant’s Reply Br. at 4. Copeland disputed the legal-

ity of his sentence for the first time in his reply brief.

Although generally we will not consider issues raised for the

first time in a reply brief, Yousefi v. I.N.S., 260 F.3d 318, 326

(4th Cir. 2001), we consider Copeland’s argument in light of

oral argument and supplemental briefing by the government.

We recognize that an "appeal waiver does not always pre-

clude an appeal," such that "even a knowing and voluntary

waiver of the right to appeal cannot prohibit the defendant

from challenging a few narrowly-construed errors." United

6

Our conclusion is clearly distinguishable from our holding in United

States v. Jones, in which, unlike the case before us, "the government [did]

not seek to enforce the waiver." 667 F.3d 477, 486 (4th Cir. 2012). Since

"we will not sua sponte enforce [the waiver]," Jones’s case was rightly

remanded to the district for resentencing in light of Simmons. Id.

UNITED STATES v. COPELAND 13

States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). We have

recently clarified that the type of "illegal" sentence which a

defendant can successfully challenge despite an appeal waiver

"involv[es] . . . fundamental issues," including claims that "a

district court exceeded its authority," premised its sentence

"on a constitutionally impermissible factor such as race," or

violated the "post-plea . . . right to counsel." Thornsbury, 670

F.3d at 539; United States v. Marin, 961 F.2d 493, 496 (4th

Cir. 1992) ("[A] defendant could not be said to have waived

his right to appellate review of a sentence imposed in excess

of the maximum penalty provided by statute.").

Copeland’s specific argument in this regard implicates the

applicability of the Fair Sentencing Act of 2010 (the "FSA").

The FSA, which had been passed at the time Copeland

pleaded guilty but was subsequently made retroactive in Dor-

sey v. United States, 132 S. Ct. 2321 (2012), would have the

effect of bringing Copeland’s plea to distributing five or more

grams of crack cocaine within the ambit of § 841(b)(1)(C)

rather than § 841(b)(1)(B).

Even if we assume that the FSA applies, in light of our

analysis in Blick, the statute authorizes a term of "at least

three years" of supervised release. 21 U.S.C. § 841(b)(1)(C)

(emphasis added). Our holding in United States v. Pratt, 239

F.3d 640, 647 (4th Cir. 2001), forecloses Copeland’s argu-

ment. There, we clarified that "three years is only the mini-

mum term of supervised release permitted by § 841(b)(1)(C)."

Id. Despite being given the opportunity to do so, Copeland

fails to dispute Pratt’s applicability. Moreover, he asserts no

other bases of purported illegality. Therefore, Copeland’s

attempts to characterize his sentence as "illegal" and outside

the scope of his appeal waiver fail. As his 216-month sen-

tence falls within both the applicable Guidelines range estab-

lished at the time of sentencing and the statutory terms

authorized by §§ 841(b)(1)(B) and (C), Copeland’s sentence

cannot be "illegal" for purposes of circumventing the appeal

waiver.

14 UNITED STATES v. COPELAND

C.

We next examine whether the district court erred in deny-

ing Copeland’s motion to continue his sentencing hearing. We

review the denial of a motion for a continuance for abuse of

discretion. United States v. Midgett, 488 F.3d 288, 297 (4th

Cir. 2007). A district court abuses its discretion when its

denial of a motion for continuance is "an unreasoning and

arbitrary insistence upon expeditiousness in the face of a justi-

fiable request for delay." Morris v. Slappy, 461 U.S. 1, 11-12

(1983) (quotation omitted). "[E]ven if such an abuse [of dis-

cretion] is found, the defendant must show that the error spe-

cifically prejudiced h[is] case in order to prevail." United

States v. Williams, 445 F.3d 724, 739 (4th Cir. 2006) (citation

and quotation omitted).

Assessed under this deferential standard, it was not an

abuse of discretion for the district court to deny Copeland’s

motion for a continuance, either because "he wasn’t prepared

for the 10 to life" sentencing range, or because counsel was

unfamiliar with a Supreme Court decision. As to the former,

the district court explained that the written plea agreement

specified the enhanced statutory range and the United States

filed a § 851 statement of its intent to seek the enhanced

range. The district court further explained the enhanced pen-

alty to Copeland at the plea hearing. Copeland therefore had

ample notice of the potential sentence. Nor did the district

court abuse its discretion in not allowing a continuance so that

Copeland could familiarize himself with a recent Supreme

Court opinion with no demonstrable effect on his case. In

light of the fact that Copeland’s June 9, 2011 sentencing had

been scheduled for over three months, the district court’s

denial of additional time for preparation was neither unrea-

soning nor arbitrary. See United States v. Hedgepeth, 418

F.3d 411, 424 (4th Cir. 2005) (considering amount of time

defense counsel had had to prepare for sentencing in finding

UNITED STATES v. COPELAND 15

that district court’s denial of continuance of sentencing hear-

ing was not an abuse of discretion).7

III.

For the foregoing reasons, Copeland’s appeal is dismissed

in part and his conviction is affirmed.

DISMISSED IN PART AND

AFFIRMED IN PART

7

Copeland’s argument that his trial counsel was constitutionally ineffec-

tive because she failed to move for a continuance before his sentencing

hearing also fails. "Claims of ineffective assistance of counsel are nor-

mally raised before the district court via 28 U.S.C. § 2255 and are cogni-

zable on direct appeal only where it conclusively appears on the record

that defense counsel did not provide effective representation." United

States v. Powell, 680 F.3d 350, 359 (4th Cir. 2012) (internal citation and

quotation omitted). There is no such conclusive appearance here.