United States v. Thomas Brincefield ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4047
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS LEE BRINCEFIELD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Loretta C. Biggs, District Judge. (1:03-cr-00346-LCB-1)
Submitted: September 25, 2019 Decided: November 15, 2019
Before GREGORY, Chief Judge, MOTZ, Circuit Judge, and TRAXLER, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Craig M. Cooley, COOLEY LAW OFFICE, Cary, North Carolina, for Appellant. John
Mcrae Alsup, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Lee Brincefield appeals the district court’s judgment revoking his
supervised release and imposing a sentence of 36 months of imprisonment. Appellate
counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), certifying
that there are no meritorious grounds for appeal but questioning whether the district court
properly calculated the policy statement range and whether the sentence is unconstitutional
given that Brincefield would not have been on supervised release had United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), been in effect at the time of his original
conviction. Brincefield has filed pro se supplemental briefs generally repeating counsel’s
arguments and further contending that he is not a career offender. We affirm.
“A district court has broad discretion when imposing a sentence upon revocation
of supervised release.” United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). We will
affirm a revocation sentence that “is within the prescribed statutory range and is
not plainly unreasonable.” United States v. Crudup, 461 F.3d 433, 440 (4th Cir. 2006).
“When reviewing whether a revocation sentence is plainly unreasonable, we must first
determine whether it is unreasonable at all.” United States v. Thompson, 595 F.3d 544,
546 (4th Cir. 2010). We conclude that the district court properly calculated the 33-to-36-
month advisory policy statement range and the 3-year statutory maximum sentence and the
24-month advisory policy statement range and the 2-year statutory maximum sentence for
Brincefield’s respective counts of conviction. See 18 U.S.C. §§ 3559(a)(2), (a)(3),
3583(e)(3) (2012); 18 U.S.C. § 472 (2012); 21 U.S.C. §§ 841(b)(1)(B), 846 (2012); U.S.
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Sentencing Guidelines Manual §§ 7B1.1(a)(1), (b), p.s., 7B1.4(a)(1), (b)(1), (3), p.s.
(2015).
Next, we conclude that Brincefield may not raise a claim that the failure to apply
Simmons to his original judgment violated his constitutional rights or challenge his career
offender status in the current proceeding. As we previously held, a “supervised release
revocation hearing is not a proper forum for testing the validity of an underlying sentence
or conviction.” United States v. Sanchez, 891 F.3d 535, 538 (4th Cir. 2018). Finally, to
the extent Brincefield argues that his attorney was ineffective, we conclude that ineffective
assistance of counsel does not conclusively appear from the record, and, thus, we decline
to address this claim on direct appeal. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th
Cir. 2010). Brincefield’s ineffective assistance of counsel claims are more appropriately
raised, if at all, in a 28 U.S.C. § 2255 (2012) motion. See United States v. Baldovinos, 434
F.3d 233, 239 & n.4 (4th Cir. 2006).
In accordance with Anders, we have reviewed the entire record in this case and have
identified no meritorious grounds for appeal. We therefore affirm the judgment of the
district court. This court requires that counsel inform Brincefield, in writing, of the right
to petition the Supreme Court of the United States for further review. If Brincefield
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
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motion must state that a copy thereof was served on Brincefield. 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
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