UNITED STATES v. PHANOR (2021)

Clepha Phanor appeals his convictions for conspiracy to commit money laundering and money laundering in violation of 18 U.S.C. §§ 1956(h) and 1957. He also appeals his 24-month sentence. Phanor's appointed counsel has moved to withdraw from further representation and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that Phanor does not raise any meritorious issues in this appeal. See id. at 744, 87 S. Ct. at 1400 (holding that when counsel determines that a criminal defendant's case is “wholly frivolous,” counsel must “so advise the court and request permission to withdraw”). As required, Phanor's counsel's Anders brief sets out any irregularities or other potential errors in entering Phanor's guilty plea and imposing his sentence that might arguably be meritorious. See United States v. Blackwell, 767 F.2d 1486, 1487–88 (11th Cir. 1985) (per curiam).

After careful review of Phanor's counsel's brief and the record, we have independently determined there are no issues of arguable merit for our review. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400.

In 2018, Phanor and three codefendants were charged in a 25-count indictment. Phanor was charged with conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Count 1), and three counts of substantive money laundering, in violation of 18 U.S.C. § 1957 (Counts 16, 17, and 19). Phanor pled guilty to Counts 1 and 16 and, in exchange, the government agreed to dismiss Counts 17 and 19.

The record makes clear that there are no issues of arguable merit to appeal related to Phanor's guilty plea.¹ The district court complied with the procedures set forth in Federal Rule of Criminal Procedure 11 to ensure that Phanor's guilty plea was entered voluntarily and knowingly and that there was a factual basis for the plea. United States v. Presendieu, 880 F.3d 1228, 1238–39 (11th Cir. 2018); see also Fed. R. Crim. P. 11(b). The record also shows the court addressed the three core concerns of Rule 11, ensuring Phanor (1) entered his guilty plea free from coercion, (2) understood the nature of the charges against him, and (3) understood the consequences of his plea. United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005) (per curiam). Further, because Phanor did not object to his plea proceedings or move to withdraw his plea in the district court, he must show the court's acceptance of his plea was plain error. See United States v. Monroe, 353 F.3d 1346, 1349 & n.2 (11th Cir. 2003). Nothing in the record suggests there “is a reasonable probability that, but for the error, [Phanor] would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 2340, 159 L.Ed.2d 157 (2004). Phanor therefore cannot show plain error, and any argument that the district court erred by accepting his guilty plea is without arguable merit.

Moreover, any argument that his sentence appeal waiver is unenforceable would fare no better. The district court expressly addressed Phanor's sentence appeal waiver and explained it to him. The court found that Phanor's waiver of his appellate rights was knowing, voluntary, and fully informed. This is supported by Phanor's testimony that he understood what he was giving up by signing the appeal waiver and that he understood his plea agreement, which contained the appeal waiver. Therefore there is no issue of arguable merit to appeal regarding Phanor's sentence appeal waiver. United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993) (explaining that an appeal waiver will be enforced if it was made knowingly and voluntarily).

Finally, there is no issue of arguable merit to appeal regarding Phanor's sentence because the record reveals that the sentence imposed was reasonable. See United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). There is no evidence that Phanor's sentence was procedurally unreasonable, because the district court properly calculated the guideline range, treated the guidelines as advisory, considered the 18 U.S.C. § 3553(a) factors, and adequately explained the chosen sentence. See United States v. Gonzalez, 550 F.3d 1319, 1323–24 (11th Cir. 2008) (per curiam). Neither is there anything in the record that would leave this Court with the definite and firm conviction that the district court committed a clear error of judgment and arrived at a substantively unreasonable sentence. Irey, 612 F.3d at 1193–94 (describing when a sentence may be substantively unreasonable).

Because independent examination of the entire record reveals no arguable issues of merit to appeal, counsel's motion to withdraw is GRANTED, and Phanor's convictions and sentence are AFFIRMED.

FOOTNOTES

1.   As an initial matter, Phanor cannot successfully challenge the magistrate judge's authority to conduct his Rule 11 proceedings because Phanor knowingly and voluntarily consented to it. United States v. Woodard, 387 F.3d 1329, 1331 (11th Cir. 2004) (per curiam). We will refer to the magistrate judge as the “district court” throughout this order.

PER CURIAM: