United States v. Twitty , 305 F. App'x 950 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4987
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCUS ANTWON TWITTY, a/k/a Marcus Antwan Young,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:06-cr-00250-LHT)
Submitted: December 18, 2008 Decided: January 16, 2009
Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE,
Raleigh, North Carolina, for Appellant. Gretchen C. F.
Shappert, United States Attorney, Charlotte, North Carolina; Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marcus Antwon Twitty pled guilty, pursuant to a
written plea agreement, to one count of conspiracy to possess
with intent to distribute cocaine and methamphetamine, 21 U.S.C.
§ 846 (2006), and was sentenced to 235 months imprisonment.
Twitty’s attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), in which she asserts that there
are no meritorious issues for appeal but raises the following
potential claims: (1) the district court abused its discretion
in denying Twitty’s motion for substitution of counsel; (2) the
district court plainly erred in applying a two-level enhancement
for possession of a weapon, U.S. Sentencing Guidelines Manual
(USSG) § 2D1.1; (3) the district court plainly erred in applying
a two-level enhancement for obstruction of justice, USSG
§ 3C1.2; (4) the district court plainly erred in computing
Twitty’s criminal history score; (5) Twitty’s sentence was
unreasonable; and, (6) trial counsel was ineffective. Although
advised of his right to file a supplemental pro se brief, Twitty
has not done so.
Counsel first questions whether the district court
erred in denying Twitty’s motion for new counsel. At the
hearing on his motion, Twitty stated that he was upset with his
court-appointed counsel because he (the attorney) had come to
visit Twitty in jail and spoken with him in a public place. The
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district court noted for the record that the jail where Twitty
was incarcerated has one private room for attorney-client
meetings and that the room is available on a first-come first-
served basis. After asking Twitty if he was sure that he still
wanted another lawyer, Twitty responded: “It’s not that I don’t
want him as a lawyer, because he has come to see me twice
already, three times talked to me. So I appreciate that. It’s
just the point that I couldn’t go nowhere else and talk to him.
I didn’t feel comfortable with other inmates in there.” We find
that Twitty’s sworn statements at the hearing indicated that he
abandoned his claim for substitution of counsel. In any event,
his statements failed to establish a conflict with his attorney
that resulted in a “total lack of communication” sufficient to
support his motion for substitution of counsel. See United
States v. Reevey, 364 F.3d 151, 156 (4th Cir. 2004).
Accordingly, the district court did not abuse its discretion in
denying his motion.
Next, counsel questions the two-level enhancement
Twitty received for possession of a dangerous weapon. Because
no objections were made in the district court, Twitty’s
challenges to his sentence are reviewed for plain error. Under
USSG § 2D1.1(b)(1), a two-level enhancement “shall be imposed if
a dangerous weapon, including a firearm, was possessed during a
narcotics offense.” The adjustment is applied “if the weapon
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was present, unless it is clearly improbable that the weapon was
connected with the offense.” USSG § 2D1.1(b)(1), comment.
(n.3). In order to demonstrate that a weapon was present, the
Government need show only that “the weapon was possessed in
connection with drug activity that was part of the same course
of conduct or common scheme as the offense of conviction.”
United States v. McAllister, 272 F.3d 228, 233-34 (4th Cir.
2001) (internal quotation marks and citation omitted). Here,
the enhancement was applied based on Twitty’s acknowledgment
that he carried a .22 caliber revolver with him when he
conducted drug transactions. We find that this was sufficient
to support the enhancement.
Counsel next questions the two-level enhancement
Twitty received for obstruction of justice. Again, Twitty did
not object to this recommendation. Section 3C1.2, USSG,
provides for a two-level adjustment when “the defendant
recklessly created a substantial risk of death or serious bodily
injury to another person in the course of fleeing from a law
enforcement officer.” The PSR recommended the enhancement
because Twitty fled from the police at the time of his arrest,
recklessly drove his vehicle away from a vehicle stop and later
abandoned his vehicle causing the officer to follow him on foot.
We find that, on these facts, the district court did not commit
plain error in applying the enhancement. See United States v.
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Sykes, 4 F.3d 697, 700 (8th Cir. 1993) (failing to pull over and
thereby compelling police to force defendant off road
constitutes reckless endangerment).
Next, counsel asserts that the district court erred in
computing Twitty’s criminal history points. The PSR found that
Twitty had a total of 11 criminal history points based on his
prior convictions. Twitty now asserts that the Government
failed to prove that some of the convictions listed in the PSR
under the name “Marcus Young” were in fact his (Twitty’s)
convictions. Counsel concedes, however that “nothing appears to
contradict the information found” in the PSR. Twitty’s criminal
history score was based, in part, on five convictions identified
in the PSR which noted that Twitty was convicted under the name
Marcus Antwon (or Antwan) Young. Because Twitty has offered no
evidence to support his claim that the convictions were not his,
this claim fails as well. See United States v. Randall, 171
F.3d 195, 210-11 (4th Cir. 1999) (noting that, where “the
district court relies on information in the presentence report .
. . in making findings, the defendant bears the burden of
establishing that the information relied on by the district
court . . . is incorrect; mere objections are insufficient.”).
Counsel also questions the reasonableness of Twitty’s
sentence. Specifically, Twitty asserts that: (1) the district
court did not adequately consider his family and mental health
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history before imposing the sentence; and (2) the sentence was
greater than necessary to comply with 18 U.S.C. § 3553(a)
(2006).
This court will affirm a sentence imposed by the
district court as long as it is within the statutorily
prescribed range and is reasonable. United States v. Hughes,
401 F.3d 540, 547 (4th Cir. 2005). In assessing the
reasonableness of the sentence, this court focuses on whether
the district court abused its discretion in imposing the
sentence. United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007). The sentence is first examined for significant
procedural errors, and then the court looks at the substance of
the sentence. Id. A sentence within a properly calculated
sentencing guideline range is presumptively reasonable. United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
In evaluating the district court’s explanation of a
selected sentence, we have held that the district court “need
not robotically tick through § 3553(a)’s every subsection,” but
need only “provide [this court] an assurance that the sentencing
court considered the § 3553(a) factors with regard to the
particular defendant.” United States v. Moulden, 478 F.3d 652,
657 (4th Cir. 2007) (internal quotation marks and citation
omitted). On appellate review, this court will not evaluate the
adequacy of the sentencing court’s explanation for its sentence
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“in a vacuum,” but rather will consider “[t]he context
surrounding [its] explanation.” United States v. Montes-Pineda,
445 F.3d 375, 381 (4th Cir. 2006). Here, the PSR detailed
Twitty’s history of substance abuse and his family history, and
that he had received mental health treatment in the past. At
the conclusion of the sentencing hearing, the district court
noted that it had considered the information contained in the
presentence report.
The district court properly calculated the Guidelines
range, considered that range in conjunction with the factors set
forth in 18 U.S.C. § 3553(a), and determined an appropriate
sentence within the Guidelines range. Applying the presumption
of reasonableness afforded sentences within the Guidelines range
and Twitty’s failure to rebut that presumption on appeal, we
conclude that his 235-month sentence is reasonable. See Rita v.
United States, 127 S. Ct. 2456, 2462-69 (2007); United States v.
Go, 517 F.3d 216, 218 (4th Cir. 2008).
Lastly, counsel raises a number of claims of
ineffective assistance of counsel. However, in order to allow
for adequate development of the record, a defendant must
ordinarily bring a claim of ineffective assistance of counsel in
a 28 U.S.C. § 2255 (2000) motion unless it conclusively appears
on the face of the record that counsel provided inadequate
assistance. United States v. Richardson, 195 F.3d 192, 198 (4th
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Cir. 1999). The record in this case does not conclusively show
ineffectiveness.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Twitty, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Twitty 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 Twitty. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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