                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4471


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

PHILLIP GERRAD RUCKER,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.     G. Ross Anderson, Jr., Senior
District Judge. (8:08-cr-00628-GRA-2)


Submitted:   September 9, 2010      Decided:   September 17, 2010


Before DUNCAN and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Elizabeth   B.  Scherer,  Matthew  N.   Leerberg,  SMITH MOORE
LEATHERWOOD LLP, Raleigh, North Carolina, for Appellant. Kevin
F. McDonald, Acting United States Attorney, A. Lance Crick,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Phillip Gerrad Rucker pleaded guilty to one count of

conspiracy     to     possess        with      intent           to    distribute         and      to

distribute     more       than    500     grams       of    methamphetamine              and      100

kilograms or more of marijuana, in violation of 21 U.S.C. § 846

(2006), and was sentenced to 262 months of imprisonment.                                           On

appeal,     Rucker     contends         that        the    district        court      committed

several   errors      during      his     Fed.      R.     Crim.      P.   11   colloquy          and

sentencing.         For    the     following         reasons,         we   affirm        Rucker’s

conviction     but    vacate        his    sentence         and       remand    for       further

proceedings.

                                               I.

             Rucker    was       arrested      following         an    investigation           into

the drug operations of one Howard Stiwinter.                                Federal agents

intercepted a phone call between Stiwinter and Rucker arranging

for a drug sale to Rucker.                Rucker was indicted on two counts of

a multi-count indictment, and charged with conspiracy to possess

with intent to distribute and to distribute more than 500 grams

of methamphetamine and 100 kilograms or more of marijuana, in

violation     of      21     U.S.C.       § 846,          and        unlawful      use       of     a

communications       facility       to    facilitate            commission      of       a     drug-

related felony, in violation of 21 U.S.C. § 843(b) (2006).

             Rucker       entered     into      a    plea       agreement,      agreeing           to

plead guilty to the conspiracy charge in exchange for dismissal

                                               2
of the communications charge.                    Pursuant to the plea agreement,

Rucker also agreed to forfeit $4124 in United States currency.

             Prior to sentencing, a probation officer prepared a

Presentence        Report    (PSR).      The      PSR   determined      that    the    base

offense level was 26 and Rucker had a criminal history category

of III.      The PSR also determined, however, that pursuant to U.S.

Sentencing Guidelines Manual § 4B1.1 (2008), Rucker was a career

offender because he had two prior convictions for controlled

substance offenses.            Accordingly, Rucker’s base offense level

was adjusted to 37 and his criminal history to category VI.

Rucker received a total reduction of three levels, USSG § 3E1.1,

yielding a total offense level of 34 and a Guideline range of

262     to   327    months     of     imprisonment.            USSG     Ch.    5,    Pt.   A

(sentencing        table).      By    statute,       as    a   result    of    the    prior

convictions, Rucker faced a mandatory minimum sentence of ten

years’ imprisonment.          See 21 U.S.C. § 841(b)(1)(B) and 851.

             At sentencing, Rucker’s counsel argued that the PSR

erred in finding that Rucker was a career offender and that, in

the alternative, the district court should vary downward from

the Guideline range because of Rucker’s personal circumstances.

In support of this latter argument, Rucker’s counsel noted that

Rucker’s     criminal       history    was       limited   to   two     incidents      that

occurred close in time in 1994 and that, since his parole in

1998,    Rucker      had    maintained       a    clean    record.        In    addition,

                                             3
counsel   noted        that   Rucker     was    married     and    a    lifelong       area

resident.      Counsel finally noted that Rucker was not extensively

involved in Stiwinter’s criminal enterprise.                      The district court

upheld the determination that Rucker was a career offender and

rejected what it termed Rucker’s plea for leniency.                               Without

affording Rucker himself an opportunity to speak, the district

court stated that it considered the “objections and the advisory

nature    of      the     sentencing       guidelines,        as       well      as     the

discretionary nature of the sentencing factors,” and sentenced

Rucker    to     262    months    of     imprisonment,       the       bottom    of     the

applicable Guideline range.

            Rucker noted a timely appeal.



                                          II.

            On    appeal,       Rucker    argues     that    the       district       court

plainly   erred        during    his   Rule     11   colloquy      and    also    during

sentencing. 1      Rucker admits that he did not raise an objection

below to the challenges to his guilty plea, and our review is

thus for plain error.            See United States v. Vonn, 535 U.S. 55,

     1
        We note that Rucker’s plea agreement contained an
appellate waiver.   The Government concedes, however, that the
district court did not address the waiver with Rucker during his
Rule 11 colloquy and, in fact, suggested to Rucker that he could
appeal. Accordingly, the Government concedes that the waiver is
unenforceable and we may proceed to the merits of Rucker’s
appeal.   See United States v. Manigan, 592 F.3d 621, 628 (4th
Cir. 2010).


                                           4
58-59 (2002) (plain error review applies to unpreserved Rule 11

claims).

               In order to satisfy the plain error standard, Rucker

must show:       (1) an error was made; (2) the error is plain; and

(3) the error affects his substantial rights.                   See United States

v. Olano, 507 U.S. 725, 732                (1993).     The decision to correct

the    error    lies    within     our   discretion,    and     we    exercise    that

discretion only if the error “seriously affects the fairness,

integrity or public reputation of judicial proceedings.”                      Olano,

507    U.S.     at    732   (alterations       and   internal    quotation       marks

omitted).        Rucker bears the burden of satisfying each of the

elements of the plain error standard.                   Vonn, 535 U.S. at 59.

For    Rucker    to    satisfy   the     third   requirement     in    the   Rule   11

context—that the error affected his substantial rights—he “must

show a reasonable probability that, but for the error, he would

not have entered the plea.”              United States v. Dominguez Benitez,

542 U.S. 74, 83 (2004).            “[The] defendant must . . . satisfy the

judgment of the reviewing court, informed by the entire record,

that   the     probability    of    a    different   result     is    sufficient    to

undermine confidence in the outcome of the proceeding.”                       Id. at

83 (internal quotation marks omitted).

               In this case, Rucker contends that the district court

plainly erred in failing to explain to Rucker two portions of



                                           5
his plea agreement:          the appeal waiver and a property forfeiture

agreement.

              We    conclude    that,     even    assuming       the    district         court

plainly      erred    during      the    Rule    11     colloquy,      Rucker       is    not

entitled to relief.            In United States v. Massenburg, 564 F.3d

337    (4th    Cir.    2009),      the    district       court       failed    to   inform

Massenburg that he could be subject to an enhanced sentence if

he had three prior felony convictions.                     We concluded that this

failure constituted plain error but that Massenburg could not

show the error affected his substantial rights.                               In reaching

this conclusion, we noted that the record was devoid of any

statements from Massenburg that he would not have pleaded guilty

if he had been aware of the possibility of a higher sentence.

Id.    at    343.     We   also    noted    that      Massenburg       never    moved      to

withdraw his plea after the PSR indicated that he was subject to

the enhanced sentence.             Id. at 343-44.          Finally, we noted that

the case against Massenburg was a “strong one,” permitting us to

“legitimately question what Massenburg would have to gain by

going to trial.”           Id. at 344.          See also Dominguez Benitez, 542

U.S.    at    85    (“When   the    record       made    for     a    guilty    plea       and

sentencing reveals evidence, as this one does, showing both a

controlled sale of drugs to an informant and a confession, one

can fairly ask a defendant seeking to withdraw his plea what he

might ever have thought he could gain by going to trial.”).

                                            6
            Likewise, in this case there is no indication in the

record that Rucker would not have pleaded guilty but for the

errors.     Indeed, because the appellate waiver is unenforceable,

it is unclear what exactly Rucker would have to gain from a

remand.     Regarding the forfeiture provision, there is no record

evidence     that    the       forfeiture         of        a    little     more     than    $4000

affected Rucker’s decision to plead guilty.                                 As the Government

notes in its brief, even assuming the district court did not

adequately explain the forfeiture to Rucker, the currency was

forfeited    in     October          2008,    more       than        five    months    prior    to

Rucker’s plea.           Moreover, in August 2008, two notices were sent

to Rucker and his wife explaining that the currency would be

forfeited unless an appropriate claim was made.                                  Thus, given the

fact that the currency was forfeited prior to Rucker’s plea and

neither Rucker nor his wife placed a claim on the money when

notified     of     their      opportunity             to       do   so,    it     hardly     seems

plausible    that        explanation         of   the       forfeiture        provision       would

have prompted Rucker to reassess his decision to plead guilty.

Finally,     as     in    Massenburg,         the       evidence           against    Rucker     is

strong:      agents       intercepted         a       phone      call   between       Rucker    and

Stiwinter     in     which       Rucker       agreed            to    purchase       drugs     from

Stiwinter.

            In     sum,       even    assuming         the       district     court    committed

Rule   11    error       by    failing       to       address        Rucker       regarding     the

                                                  7
appellate    waiver    and   the     forfeiture      provisions   in   his    plea

agreement,    Rucker     cannot      satisfy   the    remaining   plain      error

requirements.       Accordingly, we conclude that his conviction was

the result of a valid guilty plea. 2

            Next,     Rucker      contends     that     the   district       court

committed    reversible      error    during   sentencing.        Rucker     first

argues that the district court erroneously concluded that he was

a career offender.        In the alternative, Rucker argues that the

district court committed plain error by failing to allow him to

allocute at sentencing and committed procedural error by failing

to provide an adequate statement of reasons for the sentence

imposed.

            “In     determining      whether   a   district   court    properly

applied the advisory Guidelines, including application of any

sentencing enhancements, we review the district court's legal

conclusions de novo and its factual findings for clear error.”

United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009).                    In

this case, the PSR concluded that Rucker had two prior felony

convictions, but Rucker contends that, because the sentencing


     2
       Rucker also contends that the cumulative error doctrine
applies in this case.   See United States v. Martinez, 277 F.3d
517, 532 (4th Cir. 2002).     Because neither error worked “any
cognizable harm, it necessarily follows that the cumulative
error doctrine finds no foothold.” United States v. Basham, 561
F.3d 302, 330 (4th Cir. 2009) (alterations and internal
quotation marks omitted).


                                         8
for       the    convictions         was    consolidated,            the    convictions          should

count      as    a     single    conviction            under    USSG       § 4A1.2(a)(2).             The

district         court       found    that       the    charges       were       separated       by   an

intervening             arrest        and        therefore           counted           as      separate

convictions.            On appeal, Rucker does not contest the existence

of    a    separate         intervening      arrest,           but    rather      argues       that   an

intervening            arrest    should      be        but     one    factor        examined      under

§ 4A1.2.          The Guideline, however, is quite clear that “[p]rior

sentences always are counted separately if the sentences were

imposed         for    offenses       that       were     separated         by      an      intervening

arrest (i.e., the defendant is arrested for the first offense

prior       to       committing       the     second          offense).”               USSG     § 4A1.2

(emphasis         added).            As    the    PSR        recounts,        the      charges     were

separated         by    an    intervening         arrest:            Rucker      was      arrested     on

September         17,    1993    for       possession          with    intent        to      distribute

cocaine          and    then     arrested          in        January       1994      following        an

investigation into cocaine distribution from November 1993 to

January 1994.               Accordingly, the district court correctly found

that Rucker’s prior convictions counted as separate convictions

for the purpose of calculating Rucker’s sentence.

                 In his alternative argument, Rucker contends that the

district court committed plain error by not offering him the

opportunity            to     allocute        during           sentencing           and       committed

procedural error by failing to provide an adequate statement of

                                                   9
reasons for the sentence.            Because we agree that the district

court     committed     plain    error      by     not   affording        Rucker    an

opportunity to allocute, we need not address Rucker's claim that

the court did not adequately explain its sentence.

            In United States v. Muhammad, 478 F.3d 247 (4th Cir.

2007), we held that failure to permit a defendant to allocute

during sentencing constituted plain error.                    We found that the

error    affected     Muhammad’s     substantial      rights   because        he   “was

denied the opportunity to attempt to personally persuade the

district court that he should receive a lower sentence under the

new advisory guidelines regime.”               Id. at 251.     Because the post-

Booker    regime    “allows     greater    consideration       of   a    defendant’s

individual      circumstances,”      the       “possibility    remain[ed]”         that

Muhammad could have received a lower sentence if he had the

right of allocution.        Id. (internal quotation marks omitted).

            The Government assumes that the district court plainly

erred by failing to invite Rucker’s allocution, but argues that

this    error   did   not   thwart    Rucker's      substantial         rights.      We

disagree.       Although      Rucker's     262-month     sentence       was   at   the

bottom of the Guideline range, his statutory minimum sentence

was only ten years' imprisonment.                See 21 U.S.C. §        841(b)(1)(B)

(2006).     We conclude that, as in Muhammad, there is a realistic

possibility that Rucker could have received a lower sentence had

he been permitted to allocute.             As Rucker observes, his criminal

                                          10
history is limited to his 1994 convictions, and his record was

clean from 1998 to 2008.                 Rucker further notes that he has

developed a relationship with his daughter and extended family

and is married to a nurse in the community.                     Moreover, Rucker

points    out    that,       despite     his    minimal   involvement      in    the

conspiracy (a single phone call and purchase), he received the

highest   sentence      of    any   of   the    co-conspirators    charged       with

Stiwinter.      Indeed, Stiwinter himself received a sentence of 262

months' imprisonment.           A distinct possibility thus remains that,

had he been afforded the opportunity to allocute, Rucker would

have received a lower sentence.                Accordingly, we vacate Rucker’s

sentence and remand for a new sentencing proceeding. 3



                                         III.

           For     the       foregoing      reasons,      we    affirm    Rucker’s

conviction but vacate his sentence and remand for resentencing.

We   dispense    with    oral    argument       because   the   facts    and    legal




      3
       Because we are vacating Rucker’s sentence on this ground,
we do not consider Rucker’s alternate argument that the district
court failed to provide an adequate statement of reasons for the
sentence.   We are confident that the district court will be
mindful, on resentencing, of its obligation to consider the
parties' arguments and the statutory sentencing factors, "make
an individualized assessment based on the facts presented," and
explain the selected sentence. Gall v. United States, 552 U.S.
38, 49-50 (2007).


                                          11
contentions are adequately presented in the materials before the

court, and argument would not aid the decisional process.



                                                AFFIRMED IN PART,
                                                 VACATED IN PART,
                                                     AND REMANDED




                               12
