United States v. Gary Baldwin , 507 F. App'x 300 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4482
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY DEAN BALDWIN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:09-cr-00043-JPJ-3)
Submitted: January 10, 2013 Decided: January 25, 2013
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eric C. Bohnet, ERIC C. BOHNET, ATTORNEY AT LAW, Indianapolis,
Indiana, for Appellant. Jean Barrett Hudson, Assistant United
States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Dean Baldwin pled guilty without a plea agreement
to conspiracy to distribute and to possess with intent to
distribute oxycodone, in violation of 21 U.S.C. § 846 (2006),
and was sentenced to eighty-seven months’ imprisonment. On
appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal but questioning whether the
district court plainly erred by entering an amended judgment
without allowing Baldwin to challenge drug quantity or to
present evidence of trial counsel’s alleged nondisclosure of a
plea agreement. Baldwin filed pro se supplemental briefs, in
which he raises several challenges to his conviction and
sentence. Finding no error, we affirm.
Turning first to the issues presented in counsel’s
Anders brief, we note that the sole issue before the district
court during the evidentiary hearing on Baldwin’s 28 U.S.C.A.
§ 2255 (West Supp. 2012) motion was whether counsel rendered
ineffective assistance by failing to consult with Baldwin about
whether he wished to appeal. Accordingly, the district court
did not err by entering an amended judgment based on the
undisputed drug quantity and without providing Baldwin an
opportunity to present evidence regarding nondisclosure of an
alleged plea agreement. See United States v. Prado, 204 F.3d
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843, 845 (8th Cir. 2000) (rejecting argument that defendant “was
entitled to de novo resentencing” after court vacated and
reentered judgment to provide opportunity to appeal). Moreover,
issues regarding objections to the drug quantity attributable to
Baldwin and an allegedly undisclosed plea agreement are better
characterized as ineffective assistance of counsel claims at
this juncture and, because neither party has had an opportunity
to fully develop the record, those claims would be better
addressed in a § 2255 motion following the completion of
Baldwin’s direct appeal. See United States v. Baptiste, 596
F.3d 214, 216 n.1 (4th Cir. 2010); United States v. Benton, 523
F.3d 424, 435 (4th Cir. 2008) (providing standard for
ineffective assistance claims raised on direct appeal).
Accordingly, we decline to consider these issues here.
We turn next to the issues raised in Baldwin’s pro se
supplemental briefs. Baldwin argues that he did not knowingly
and voluntarily enter his plea because he was not aware that he
would be sentenced to more than thirty-six months’ imprisonment
and because he was induced to enter his plea by trial counsel’s
promise to appeal. Our review of the transcript of the Fed. R.
Crim. P. 11 proceeding discloses that Baldwin entered his plea
knowingly and voluntarily. During Baldwin’s plea colloquy, he
indicated that he understood the maximum penalty for the offense
was twenty years’ imprisonment and affirmatively stated that no
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one had made him any promises to induce him to enter his plea.
Baldwin has failed to present compelling evidence to rebut “the
truth of [these] sworn statements made during [his] Rule 11
colloquy.” United States v. Lemaster, 403 F.3d 216, 221-22 (4th
Cir. 2005).
Apart from counsel’s failure to object to the drug
quantity attributed to him, Baldwin argues that the court did
not correctly calculate the drug quantity. Because Baldwin
failed to object to the district court’s calculation of drug
quantity at sentencing, his claim is reviewed for plain error.
United States v. Blatstein, 482 F.3d 725, 731 (4th Cir. 2007).
The district court may “accept any undisputed portion of the
presentence report as a finding of fact.” Fed. R. Crim. P.
32(i)(3)(A). Moreover, even if a defendant objects to a finding
in the presentence report, in the absence “of an affirmative
showing the information is inaccurate, the court is free to
adopt the findings of the presentence report without more
specific inquiry or explanation.” United States v. Love, 134
F.3d 595, 606 (4th Cir. 1998) (internal quotation marks and
brackets omitted). Here, there were no objections to the drug
quantities attributed to Baldwin, much less any affirmative
showing that the information in the presentence report was not
accurate. We therefore conclude that the district court did not
err, plainly or otherwise, by relying on the undisputed facts in
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the presentence report to determine the drug quantity attributed
to Baldwin.
Baldwin next argues that his sentence is substantively
unreasonable. This court reviews the district court’s sentence,
“whether inside, just outside, or significantly outside the
Guidelines range[,] under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). When
reviewing a sentence for substantive reasonableness, this court
“examines the totality of the circumstances,” and, if the
sentence is within the properly-calculated Guidelines range,
applies 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). Here, contrary to
Baldwin’s assertion, it is clear that the court considered
Baldwin’s addiction to oxycodone by ordering as a special
condition of release that he attend substance abuse counseling.
Accordingly, we conclude that Baldwin has provided no evidence
to rebut the presumption that his within-Guidelines sentence is
substantively reasonable.
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Finally, Baldwin argues that appellate counsel
rendered ineffective assistance by failing to file a merits
brief. Such claims are not generally cognizable on direct
appeal. Benton, 523 F.3d at 435. Because the record does not
establish that appellate counsel was ineffective, we will not
review Baldwin’s claim at this juncture. See Baptiste, 596 F.3d
at 216 n.1; see also Jones v. Barnes, 463 U.S. 745, 754 (1983)
(holding that appellate counsel need not raise on appeal every
non-frivolous issue suggested by defendant).
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 amended judgment. This
court requires that counsel inform Baldwin, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Baldwin 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 Baldwin.
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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