UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
2

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. 
3

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. 
4

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, 
7

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 lawyeragent.” (internal quotation marks omitted)).
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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
9

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 
10

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