United States v. Harris ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4005
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK HARRIS,
Defendant - Appellant.
No. 08-4033
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLA MUSICK,
Defendant - Appellant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:07-cr-00006-1; 5:07-cr-00006-2)
Submitted: June 25, 2009 Decided: July 29, 2009
Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jacqueline A. Hallinan, HALLINAN LAW OFFICES, PLLC, Charleston,
West Virginia; Barron M. Helgoe, VICTOR VICTOR & HELGOE, LLP,
Charleston, West Virginia, for Appellants. Charles T. Miller,
United States Attorney, Miller Bushong, Assistant United States
Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A superseding indictment charged Derrick Harris and
Carla Musick with various joint and individual drug offenses.
Harris pled guilty to Count 6, possession with intent to
distribute five grams or more of cocaine base, and Musick pled
guilty to Count 4, possession with intent to distribute five
grams or more of cocaine base. Harris was sentenced to 205
months of imprisonment and Musick to 96 months. Both defendants
were sentenced within their respective advisory Sentencing
Guidelines ranges. Their cases have been consolidated on
appeal.
Harris alleges two issues. First, whether the
district court clearly erred by denying his motion to withdraw
his plea. Second, whether Harris lacked adequate assistance of
counsel at sentencing. Musick’s sole issue is whether the
district court clearly erred by increasing her base offense
level by two for possession of a weapon under U.S. Sentencing
Guidelines Manual (“USSG”) § 2D1.1(b)(1) (2007). For the
reasons that follow, we affirm.
We find no merit to Harris’ claims. First, we find no
abuse of discretion in the district court’s decision to deny
Harris’ motion to withdraw his guilty plea. United States v.
Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000) (stating review
standard). The record reveals that the district court carefully
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stepped through the six factors outlined in this court’s opinion
in United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991), in
determining whether to grant the motion. Second, we find no
cognizable claim of ineffective assistance of Harris’ trial
counsel in this direct appeal. United States v. James, 337 F.3d
387, 391 (4th Cir. 2003).
We review Musick’s sentence under a deferential abuse-
of-discretion standard. Gall v. United States, 552 U.S. 38, __,
128 S. Ct. 586, 590 (2007). We find no procedural or
substantive error in the district court’s sentence. Id. at 597;
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). In
particular, we find no clear error in the district court’s
decision that the USSG § 2D1.1(b)(1) enhancement was warranted.
United States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001).
Thus, this claim fails.
Accordingly, we affirm Harris’ and Musick’s
convictions and sentences. 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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