United States v. Elliott , 305 F. App'x 69 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4289
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PATRICIA LEMLY ELLIOTT, a/k/a Patty Sandford Ferrara,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:03-cr-00027-LHT-4)
Submitted: December 11, 2008 Decided: December 15, 2008
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Carol Ann Bauer, Morganton, North Carolina, for Appellant. Adam
Christopher Morris, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Patricia Lemly Elliott pled guilty pursuant to a
written plea agreement to conspiracy to possess with intent to
distribute methamphetamine and marijuana and was sentenced to 72
months of imprisonment. On appeal, counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
there are no meritorious grounds for appeal, but raising the
following issues: (1) whether Elliott received ineffective
assistance of trial counsel; (2) whether the Government
committed prosecutorial misconduct; and (3) whether Elliott was
erroneously sentenced. For the reasons that follow, we affirm.
Elliott’s claims that she received ineffective
assistance at her plea and sentencing hearings are belied by the
record. Moreover, we find no ineffective assistance
conclusively appearing on the record, as required to establish
the claim on direct appeal. United States v. James, 337 F.3d
387, 391 (4th Cir. 2003).
Next, Elliott claims that the prosecutor committed
misconduct by telling her that if she did not pled guilty, the
Government would pursue a twenty-year sentence against her. We
note that a prosecutor is allowed to threaten a defendant with
increased punishment if a defendant refuses to accept a plea
agreement. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978).
Based on Elliott’s prior drug felony and the Government’s
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18 U.S.C. § 851 (2006) notice, Elliott was eligible for a
twenty-year minimum sentence. See 18 U.S.C. § 841(b)(1)(A)
(2006). Thus, this claim fails.
Finally, we do not find that the district court abused
its discretion in sentencing Elliott. Gall v. United States, 128
S. Ct. 586, 596-97 (2007); United States v. Pauley, 511 F.3d
468, 473 (4th Cir. 2007). In particular, we find no error in
the calculation of her criminal history. See U.S Sentencing
Guidelines Manual § 4A1.1 comment. (n.3) (2003) (counting
criminal history points based on prior sentences occurring
within ten years of commencement of the instant offense).
In accordance with Anders, we have reviewed the entire
record in this case, including the issues raised in Elliott’s
pro se supplemental brief, and have found no meritorious issues
for appeal. Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform her client, in
writing, of her right to petition the Supreme Court of the
United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move this court for leave
to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on the client. We dispense with
oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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