USA v. Clepha Phanor

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-10891
Non-Argument Calendar
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D.C. Docket No. 1:18-cr-20955-KMM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLEPHA PHANOR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 11, 2021)
Before MARTIN, JORDAN, and GRANT, Circuit Judges.
PER CURIAM:
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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 (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
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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,
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.
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124 S. Ct. 2333, 2340 (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
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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.
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