UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4538

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HEATHER DEYOUNG,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Spartanburg. G. Ross Anderson, Jr., Senior 

District Judge. (7:12-cr-00475-GRA-2)

Submitted: April 10, 2014 Decided: May 14, 2014

Before AGEE and DIAZ, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

Jill E.M. HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston, 

South Carolina, for Appellant. William N. Nettles, United 

States Attorney, William J. Watkins, Jr., Assistant United 

States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Heather DeYoung appeals her conviction and sentence 

after pleading guilty to conspiracy to distribute and to possess 

with intent to distribute oxycodone in violation of 21 U.S.C. 

§§ 841(a)(1), (b)(1)(C) (2012). On appeal, DeYoung contends the 

district court erred under Fed. R. Crim. P. 11 in accepting her 

guilty plea, and her sentence is unreasonable. We affirm her 

conviction, vacate her sentence, and remand for resentencing.

“A guilty plea operates as a waiver of important 

rights, and is valid only if done voluntarily, knowingly, and 

intelligently, ‘with sufficient awareness of the relevant 

circumstances and likely consequences.’” Bradshaw v. Stumpf, 

545 U.S. 175, 183 (2005) (quoting Brady v. United States, 397 

U.S. 742, 748 (1970)). In federal cases, Rule 11 of the Federal 

Rules of Criminal Procedure “governs the duty of the trial judge 

before accepting a guilty plea.” Boykin v. Alabama, 395 U.S. 

238, 243 n.5 (1969). It “require[s] a district court, before 

accepting a guilty plea, to ‘personally inform the defendant of, 

and ensure that he understands, the nature of the charges 

against him and the consequences of his guilty plea.’” United 

States v. Hairston, 522 F.3d 336, 340 (4th Cir. 2008) (quoting 

United States v. Damon, 191 F.3d 561, 564 (4th Cir. 1999)). 

Rules 11(b)(1) and 11(b)(2) require the district court 

to “address the defendant personally in open court” to both 
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inform her of her rights as a defendant and consequences of the 

plea, and to determine that her plea is knowing and voluntary. 

Fed. R. Crim. P. 11(b). If the parties “discuss and reach a 

plea agreement,” they “must disclose the plea agreement in open 

court when the plea is offered.” Fed. R. Crim. P. 11(c). If 

the Government agrees to “recommend, or agree[s] not to oppose 

the defendant’s request, that a particular sentence or 

sentencing range is appropriate,” the court “must advise the 

defendant that the defendant has no right to withdraw the plea 

if the court does not follow the recommendation or request.” 

Fed. R. Crim. P. 11(c)(1)(B), (c)(3)(B); United States v. 

Martinez, 277 F.3d 517, 530-31 (4th Cir. 2002); United States v. 

Iaquinta, 719 F.2d 83, 84-85 (4th Cir. 1983).

We “accord deference to the trial court’s decision as 

to how best to conduct the mandated colloquy.” United States v. 

DeFusco, 949 F.2d 114, 116 (4th Cir. 1991); see also United 

States v. Wilson, 81 F.3d 1300, 1307 (4th Cir. 1996) (noting 

this “Court has repeatedly refused to script the Rule 11 

colloquy, relying rather on the experience and wisdom of the 

district judges below”). A guilty plea may be knowingly and 

intelligently made based on information received before the plea 

hearing. See DeFusco, 949 F.2d at 116; see also Bradshaw, 545 

U.S. at 183 (trial court may rely on counsel’s assurance that 

defendant was properly informed of elements of the crime).
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“A federal court of appeals normally will not correct 

a legal error made in criminal trial court proceedings unless 

the defendant first brought the error to the trial court’s 

attention.” Henderson v. United States, 133 S. Ct. 1121, 1124 

(2013) (citing United States v. Olano, 507 U.S. 725, 731 

(1993)). Federal Rule of Criminal Procedure 52(b) creates an 

exception to the normal rule, providing “[a] plain error that 

affects substantial rights may be considered even though it was 

not brought to the court’s attention.” Fed. R. Crim. P. 52(b).

Because DeYoung’s Rule 11 claim is raised for the 

first time on appeal, we review for plain error. See United 

States v. Vonn, 535 U.S. 55, 71 (2002); Martinez, 277 F.3d at 

525. It is thus DeYoung’s burden to show (1) error; (2) that 

was plain; (3) affecting her substantial rights; and (4) that 

this Court should exercise its discretion to notice the error. 

See Martinez, 277 F.3d at 529, 532. To show her substantial 

rights were affected, she “must show a reasonable probability 

that, but for the error, [she] would not have entered the plea.” 

United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).

We have reviewed the record and the parties’ briefs, 

and we conclude that DeYoung fails to make this showing. Even 

assuming that the district court did plainly err under Rule 11, 

DeYoung fails to assert or show that she would not have entered 

her guilty plea but for the alleged error.
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We review a criminal sentence for reasonableness using 

an abuse of discretion standard. United States v. McManus, 734 

F.3d 315, 317 (4th Cir. 2013) (citing Gall v. United States, 552 

U.S. 38, 51 (2007)). We first consider whether the district 

court committed a significant procedural error, such as 

improperly calculating the Guidelines range or inadequately 

explaining the sentence imposed. United States v. Allmendinger, 

706 F.3d 330, 340 (4th Cir.), cert. denied, 133 S. Ct. 2747 

(2013). If the sentence is procedurally reasonable, we then 

consider whether it is substantively reasonable, taking into 

account the totality of the circumstances. Gall, 552 U.S. at 

51. We presume that a sentence within or below a properly 

calculated Guidelines range is substantively reasonable. United 

States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012).

We review preserved sentencing claims for abuse of 

discretion, and if we find abuse, reversal is required unless 

the error was harmless. United States v. Lynn, 592 F.3d 572, 

576 (4th Cir. 2010). “A district court abuses its discretion 

when it acts arbitrarily or irrationally, fails to consider 

judicially recognized factors constraining its exercise of 

discretion, relies on erroneous factual or legal premises, or 

commits an error of law.” United States v. Grant, 715 F.3d 552, 

557 (4th Cir. 2013) (citation and internal quotations omitted).
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In sentencing, the district court must first correctly 

calculate the defendant’s Guidelines range. Allmendinger, 706 

F.3d at 340. The court is next required to give the parties an 

opportunity to argue for what they believe is an appropriate 

sentence, and the court must consider those arguments in light 

of the factors set forth in 18 U.S.C. § 3553(a) (2012). Id. 

When rendering a sentence, the court must make and place on the 

record an individualized assessment based on the particular 

facts of the case. United States v. Carter, 564 F.3d 325, 328, 

330 (4th Cir. 2009). In explaining a sentence, the “sentencing 

judge should set forth enough to satisfy the appellate court 

that he has considered the parties’ arguments and has a reasoned 

basis for exercising his own legal decisionmaking authority.” 

Rita v. United States, 551 U.S. 338, 356 (2007). Where a 

defendant or the Government presents nonfrivolous reasons for 

imposing a sentence outside the Guidelines, the district court 

should address those arguments and explain why it has rejected 

them. See Rita, 551 U.S. at 357; Lynn, 592 F.3d at 584-85.

We have reviewed the record and conclude that the 

district court failed to adequately explain its sentence, and 

the sentence is procedurally unreasonable. DeYoung and her codefendant, who was her ex-husband, pled guilty together. At 

their guilty plea hearing, the Government placed on the record 

that it had agreed to make sentencing recommendations in their 
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cases. Based on DeYoung’s minor role in the conspiracy, the 

Government recommended that she be sentenced to twelve months of 

home confinement. In her co-defendant’s case, the Government 

recommended a reduction in drug weight and no enhancement for a 

leadership role in the conspiracy. The district court sentenced 

the co-defendant as recommended by the parties. 

At DeYoung’s sentencing that immediately followed, she 

requested that the district court likewise sentence her as 

recommended by the Government, or if the court determined that a 

prison sentence was appropriate, that it give her the same 

benefit that her co-defendant received from the reduction in 

drug weight. The district court rejected both requests without 

explanation, sentencing her instead to 70 months in prison, the 

bottom of her advisory Guidelines range. While the co-defendant 

was more culpable, he received the same sentence.

Because the record does not make clear that the 

district court considered DeYoung’s arguments when sentencing 

her or had a reasoned basis for rejecting them, we conclude that 

the court erred by ignoring her “nonfrivolous arguments for a

different sentence and failing to explain the sentencing 

choice.” Lynn, 592 F.3d at 584-85. Moreover, because we cannot 

say with fair assurance that the district court’s explicit 

consideration of DeYoung’s arguments would not have affected the 

sentence imposed, we conclude that the Government has not shown 
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that the error was harmless. See United States v. Boulware, 604 

F.3d 832, 838-40 (4th Cir. 2010). 

Accordingly, we affirm DeYoung’s conviction, vacate 

her sentence, and remand for resentencing. We also direct that 

this case be assigned to a different judge on remand. See

United States v. Lentz, 383 F.3d 191, 221-22 (4th Cir. 2004). 

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 IN PART,

VACATED IN PART,

AND REMANDED