                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4397


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

PHILLIP SCOTT FURR,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.    Terry L. Wooten, Chief District
Judge. (4:10-cr-01043-TLW-1)


Submitted:   November 27, 2013            Decided:   December 23, 2013


Before DAVIS, KEENAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ray Coit Yarborough, Jr., LAW OFFICE OF RAY COIT YARBOROUGH,
JR., Florence, South Carolina, for Appellant.    Alfred William
Walker Bethea, Jr., Assistant United States Attorney, Florence,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Phillip       Scott       Furr     pled          guilty     to     possession         of

firearms     by    a    convicted       felon,         in     violation        of     18    U.S.C.

§§ 922(g)(1), 924(e) (2012), but preserved his right to appeal

the   district     court’s       denial      of       his    motion    to     suppress        under

Franks v. Delaware, 438 U.S. 154 (1978).                               The district court

originally    sentenced         Furr    to     250          months’    imprisonment.              On

appeal,     the        Government      sought           remand        of      the     case       for

resentencing so that it could move for an additional one-level

downward adjustment for acceptance of responsibility pursuant to

the   terms       of    the     conditional           plea     agreement.             See     U.S.

Sentencing    Guidelines         Manual       (“USSG”)         § 3E1.1(b)       (2012).           We

granted the Government’s motion, vacated Furr’s sentence, and

remanded for resentencing.                   At the resentencing hearing, the

court granted the additional one-level downward adjustment for

acceptance of responsibility to Furr’s advisory Guidelines range

and sentenced Furr to 228 months’ imprisonment.

            Furr        now     appeals       the           district       court’s         amended

judgment.         Counsel     has     filed       a    brief     pursuant       to    Anders v.

California,       386    U.S.    738    (1967),         stating        that    there       are    no

meritorious       grounds       for    appeal         but     questioning           whether      the

district court complied with Fed. R. Crim. P. 11 in accepting

Furr’s guilty plea and whether Furr’s sentence is reasonable.



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Furr has filed a pro se supplemental brief, in which he raises

several       challenges     to    his    sentence       and    the    district    court’s

denial of the motion to suppress.                  We affirm.

               Initially, we conclude that some of the issues Furr

raises    in    his    pro    se     supplemental        brief    are    barred    by   the

mandate rule.         See Volvo Trademark Holding Aktiebolaget v. Clark

Mach. Co., 510 F.3d 474, 481 (4th Cir. 2007) (providing that

“[t]he mandate rule is a specific application of the law of the

case   doctrine”      to     cases      that   have      been   remanded    on    appeal).

Although Furr challenges the district court’s application of the

armed career criminal enhancement and argues that the Government

breached the plea agreement by seeking the enhancement, Furr has

waived appellate review of those issues by failing to raise them

in his first appeal.               See United States v. Pileggi, 703 F.3d

675, 680 (4th Cir. 2013) (holding that party “is not permitted

to use the accident of a remand to raise an issue that it could

just     as    well   have       raised    in      the    first       appeal”    (internal

quotation marks and alterations omitted)).

               Next, Furr argues in his pro se supplemental brief, as

he did in his first appeal, that the district court erred by

denying his msotion to suppress.                   We review the factual findings

underlying the district court’s denial of a motion to suppress

for    clear    error      and    the    court’s      legal     conclusions      de   novo.



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United States v. Kelly, 592 F.3d 586, 589 (4th Cir. 2010); see

United       States    v.    Spears,      673       F.3d    598,     604-05       (7th   Cir.)

(applying same standards to denial of motion following Franks

hearing), cert. denied, 133 S. Ct. 232 (2012).                                    A defendant

bears    a    heavy    burden       in   establishing         the    need    for    a    Franks

hearing.       United States v. Jeffus, 22 F.3d 554, 558 (4th Cir.

1994).       A defendant must make a substantial preliminary showing

that a false statement critical to a finding of probable cause

made knowingly and intentionally, or with reckless disregard for

the truth, was included in the warrant affidavit.                                 See Franks,

438 U.S. at 155-56; United States v. Clenney, 631 F.3d 658, 663

(4th Cir. 2011).

               If the court conducts a hearing and finds that the

affiant committed perjury or manifested a reckless disregard for

the truth, the tainted material must be set aside.                                Franks, 438

U.S. at 156.          If the remainder of the search warrant affidavit

is insufficient to support a probable cause finding, then “the

search    warrant      must       be   voided       and    the    fruits    of    the    search

excluded.”        Id.         The      issue    is    not        whether    the    challenged

information       in        the     affidavit        supporting        the        warrant   is

ultimately found to be truthful, but whether “the information ..

. [was] believed or appropriately accepted by the affiant as

true.”       Id. at 165.



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            Upon    our     review    of          the    transcript       of    the    Franks

hearing, we conclude that the district court did not err in

finding that the officers did not provide false information to

the magistrate judge or manifest a reckless disregard for the

truth.     The district court reasonably concluded that all three

of   the    officers      involved       in       obtaining        the    search      warrant

“believed     or   appropriately          accepted”           that       the    information

offered to support issuance of the warrant was true.                           Id.

            Turning next to the validity of Furr’s guilty plea,

counsel questions whether the district court complied with Rule

11 in accepting Furr’s plea.                  Because Furr did not move in the

district court to withdraw his guilty plea, we review the Rule

11 hearing for plain error.              United States v. Martinez, 277 F.3d

517, 525 (4th Cir. 2002).             To establish plain error on appeal,

Furr must show:           “(1) there is ‘an error,’ (2) the error is

‘plain,’    and    (3)    the    error     ‘affect[s]          substantial         rights.’”

Henderson    v.    United       States,       133       S.   Ct.    1121,      1126    (2013)

(quoting United States v. Olano, 507 U.S. 725, 732 (1993)).                                In

the guilty plea context, a defendant meets his burden by showing

a reasonable probability that he would not have pled guilty but

for the Rule 11 omission.            United States v. Massenburg, 564 F.3d

337, 343 (4th Cir. 2009).




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            Upon our review of the transcript of Furr’s guilty

plea hearing, we conclude that the district court substantially

complied with Rule 11 in accepting Furr’s plea and that any

omission by the court did not affect Furr’s substantial rights.

See Fed. R. Crim. P. 11(b)(1)(E) (mandating that court explain

right    against     compelled    self-incrimination);             Massenburg,      564

F.3d at 344 (holding that “the mere existence of an error cannot

satisfy     the     requirement       that     [defendant]         show     that    his

substantial rights were affected”); United States v. Stead, 746

F.2d 355, 356-57 (6th Cir. 1984) (concluding that failure to

advise defendant of right against compelled self-incrimination

did not require guilty plea to be set aside).                            Moreover, the

district     court     ensured    that       Furr’s   plea        was     knowing   and

voluntary    and     supported   by    a   sufficient       factual       basis.    See

United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir.

1991).

            Next,       both     counsel        and        Furr         question    the

reasonableness of Furr’s sentence.                 We review Furr’s sentence

for     reasonableness     “under      a     deferential     abuse-of-discretion

standard.”        Gall v. United States, 552 U.S. 38, 41 (2007).                      A

sentence     is    procedurally       reasonable      if    the     court     properly

calculates the defendant’s advisory Guidelines range, gives the

parties an opportunity to argue for an appropriate sentence,



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considers   the     18    U.S.C.      § 3553(a)           factors,      does    not    rely    on

clearly erroneous facts, and sufficiently explains the selected

sentence.    Id. at 49-51.

            In his pro se supplemental brief, Furr argues that the

district    court        erred    (1)     by       failing     to       order     a    revised

presentence    report       (“PSR”);         (2)     by    failing      to     give    him    the

opportunity    to    object       to     the       revised     PSR;      and    (3)    in     the

procedure    used    at     the       resentencing          hearing       generally.           We

conclude that the record directly contradicts Furr’s assertions:

the court specifically gave counsel an opportunity to suggest an

alternative    procedure         at    the     resentencing          hearing.          Neither

party   accepted     the    court’s          invitation       or     requested        that    the

probation    officer       prepare       a     revised       PSR.        Accordingly,          we

conclude    that    Furr    has       waived       any     challenge      related      to     the

procedure employed by the district court at the resentencing

hearing.      See    Olano,        507        U.S.    at     733     (“[W]aiver        is     the

intentional   relinquishment             or    abandonment         of    a     known   right.”

(internal quotation marks omitted)); United States v. Claridy,

601 F.3d 276, 284 n.2 (4th Cir. 2010) (“When a claim of . . .

error has been waived, it is not reviewable on appeal.”); see

also United States v. Taylor, 659 F.3d 339, 348 (4th Cir. 2011)

(“[T]he defendant is deemed bound by the acts of his lawyer-

agent.” (internal quotation marks omitted)).



                                               7
            Finding        no    significant          procedural        error,        we   now

consider    the     substantive         reasonableness            of   Furr’s     sentence.

Gall, 552 U.S. at 51.                In reviewing a sentence for substantive

reasonableness,           we     “examine[]               the     totality        of       the

circumstances,”          and,   if    the    sentence       is    within    the       properly

calculated Guidelines range, apply a presumption on appeal that

the   sentence      is    substantively        reasonable.             United    States     v.

Mendoza-Mendoza, 597 F.3d 212, 216-17 (4th Cir. 2010).                                 Such a

presumption is rebutted only if the defendant shows “that the

sentence    is    unreasonable         when    measured         against    the    § 3553(a)

factors.”        United States v. Montes-Pineda, 445 F.3d 375, 379

(4th Cir. 2006) (internal quotation marks omitted).

            In his pro se supplemental brief, Furr argues that the

district court erred by distinguishing between the facts of his

case and the facts of Pepper v. United States, 131 S. Ct. 1229

(2011)    (permitting       district        court    to     consider      post-sentencing

rehabilitation as appropriate basis for variance under § 3553(a)

on resentencing), on the ground that Pepper demonstrated that he

had been making significant efforts at rehabilitation outside

prison,     while     Furr’s         efforts       were     all    within       the    prison

environment.        We disagree with the suggestion that the district

court erred or abused its discretion in distinguishing Pepper.

It was not unreasonable for the court to conclude that Pepper’s



                                               8
significant progress outside of prison was more notable than

Furr’s efforts at rehabilitation while in prison and under the

threat of sanctions for noncompliance.

            Notably,       the    district         court    did    not    ignore      Furr’s

efforts     at    rehabilitation.              Although      the     court      explicitly

credited Furr for his efforts, the court also considered the

serious conduct of the underlying offense; Furr’s significant

prior     record,    which       includes         many     violent       felonies,      some

involving        particularly           vulnerable          victims;        and       Furr’s

demonstrated      lack     of    respect       for    the    law.        See    18    U.S.C.

§ 3553(a)(1), (2)(A)-(D).               Accordingly, we conclude that Furr

has not shown that his sentence is unreasonable when measured

against the § 3553(a) factors.

            Finally,       although        Furr      purports       to    challenge        the

district court’s text order denying his post-sentence motion for

reconsideration,      Furr       did    not    effectively        appeal       that   order.

See Smith v. Barry, 502 U.S. 244, 248–49 (1992) (holding that

appellate    brief    may       serve    as       notice    of    appeal       only   if   it

otherwise       complies    with       rules       governing       proper      timing      and

substance).

            In accordance with Anders, we have reviewed the record

and have found no meritorious grounds for appeal.                           We therefore

affirm    the    district        court’s      amended       judgment.          This     court



                                              9
requires that counsel inform Furr, in writing, of the right to

petition    the    Supreme      Court    of    the    United     States      for   further

review.    If Furr 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 Furr.

               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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