United States v. Fleming ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5216
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FREDERICK DEVON FLEMING,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Sr.,
Senior District Judge. (1:06-cr-00245-WLO)
Submitted: April 22, 2009 Decided: March 19, 2010
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, P.A., Greensboro,
North Carolina, for Appellant. Paul Alexander Weinman, OFFICE
OF THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Frederick Devon Fleming pled guilty pursuant to a
written plea agreement to possession with intent to distribute
cocaine base (“crack”), in violation of 21 U.S.C. § 841(a)(1)
(2006). Fleming was sentenced to 132 months’ imprisonment.
Finding no error, we affirm.
Counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he asserts there are
no meritorious issues for appeal but questions the conviction
and sentence. Fleming was notified of his right to file a pro
se supplemental brief, but he did not do so. The Government
elected not to file a responsive brief.
Initially, counsel contends that Fleming’s conviction
should be vacated because the confidential informant, who was
allegedly on probation, did not have the court’s permission to
act as an informant. The factual basis proffered by the
Government at the Fed. R. Crim. P. 11 hearing, to which Fleming
did not object, established that the informant was properly
acting at the behest of state law enforcement officers. Thus,
Fleming cannot establish any error in this respect. Moreover,
we conclude the district court fully complied with Rule 11 as it
thoroughly discussed Fleming’s right to a trial, the nature of
the offense, and the applicable punishment, in addition to
ascertaining that a factual basis supported the offense.
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Counsel next contends that a category of VI over-
represented the seriousness of Fleming’s criminal history
because fifteen of the twenty-four points imposed were the
result of driving with a revoked license. As Fleming did not
object to the calculation of his criminal history in the
district court, review is for plain error. See United States v.
Branch, 537 F.3d 328, 343 (4th Cir. 2008), cert. denied, 129 S.
Ct. 943 (2009). To establish plain error, the defendant must
show that an error occurred, that the error was plain, and that
the error affected the defendant’s substantial rights. United
States v. Olano, 507 U.S. 725, 732-34 (1993).
The district court properly calculated Fleming’s
criminal history category. Our review of the Presentence
Investigation Report (“PSR”) also shows that Fleming has twenty-
four prior criminal convictions, seven of which contributed to
the criminal history points. Two of the prior convictions were
for drug―related offenses, and one of those involved possession
with intent to distribute crack. Thus, application of U.S.
Sentencing Guidelines Manual § 4A1.3(b) (2005), based upon an
over—representation of criminal history, clearly was not
merited.
Counsel also asserts that the district court erred in
failing to consider the sentencing disparity between crack and
powder cocaine. At the time of Fleming’s sentencing hearing on
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November 15, 2006, this court’s precedent did not allow district
courts to consider the disparity created by the 100:1 crack to
powder cocaine ratio in determining an appropriate sentence.
See United States v. Eura, 440 F.3d 625, 632-34 (4th Cir. 2006).
However, the Supreme Court determined that “the cocaine
Guidelines, like all other Guidelines, are advisory only” and,
in doing so, overruled Eura. Kimbrough v. United States, 552
U.S. 85, 91 (2007). The Court stated that “it would not be an
abuse of discretion for a district court to conclude when
sentencing a particular defendant that the crack/powder
disparity yields a sentence ‘greater than necessary’ to achieve
§ 3553(a)’s purposes, even in a mine-run case.” Id. at 110.
Since Fleming did not object to his sentence in the
district court, review is for plain error. See Branch, 537 F.3d
at 343. Assuming the court’s failure to consider the
crack/powder disparity constitutes error that was plain, it must
still be established that the error affected the defendant’s
substantial rights. See id. We previously have “concluded that
the error of sentencing a defendant under a mandatory guidelines
regime is neither presumptively prejudicial nor structural,”
thereby requiring a showing of “actual prejudice.” United
States v. White, 405 F.3d 208, 223 (4th Cir. 2005). Thus, to
satisfy the requirements of the plain error standard, the burden
is on the defendant to establish that the error “affected the
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outcome of the district court proceedings.” Id. (internal
quotation marks and citation omitted). Because the record does
not reveal a nonspeculative basis for concluding that the
district court would have imposed a shorter sentence had it
known it possessed discretion to do so, we conclude Fleming
cannot demonstrate that the district court’s failure to consider
the crack/powder disparity affected his substantial rights.
Finally, counsel contends that Fleming’s trial counsel
provided ineffective assistance. An ineffective assistance of
counsel claim generally is not cognizable on direct appeal, but
should instead be asserted in a post-conviction motion under 28
U.S.C.A. § 2255 (West Supp. 2008). See United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). However, we have
recognized an exception to the general rule when “it
‘conclusively appears’ from the record that defense counsel did
not provide effective representation.” Id. (quoting United
States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994)).
Because the record does not conclusively establish that counsel
was ineffective, the claim is not cognizable on direct appeal.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
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appeal. * Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform his client, in
writing, of his 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
*
Notably, acting sua sponte, we twice placed this case in
abeyance pending decisions that were potentially favorable to
Fleming, including our recent decision in United States v. Lynn,
592 F.3d 572, No. 08-5125(L) (4th Cir. Jan. 28, 2010).
Ultimately, however, Fleming is not entitled to any relief under
Lynn. In one of the cases consolidated for decision therein
(No. 08-5132), the defendant, Avery Peake, posed no objections
to the PSR and requested a sentence within his advisory
Guidelines range. Lynn, slip op. at 12-13. Thus, we reviewed
for plain error Peake’s assertion that the district court
committed procedural error by failing to consider the required
sentencing factors and offer an adequate explanation for the
sentence imposed. See id. at 4, 12-13. We determined that,
even assuming the court committed clear error, Peake had not
shown that the error had a prejudicial effect on the sentence
imposed, in that “[h]is attorney’s arguments before the district
court urged that court only to impose a sentence within the
Guidelines range, which it did.” Id. at 13. Similarly,
Fleming’s lawyer agreed with the PSR and urged a within-
Guidelines sentence, and the district court imposed such a
sentence. As such, Fleming cannot show that any procedural
error committed by the court in failing to adequately explain
the chosen sentence was prejudicial, and we must affirm
Fleming’s sentence on plain error review.
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adequately presented in the materials before the court and
argument would not aid in the decisional process.
AFFIRMED
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