United States v. Brannon ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5934
JOHN BRANNON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(CR-95-370)
Submitted: April 16, 1996
Decided: July 12, 1996
Before ERVIN, LUTTIG, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
C. Carlyle Steele, Greenville, South Carolina, for Appellant. Harold
Watson Gowdy, III, OFFICE OF THE UNITED STATES ATTOR-
NEY, Greenville, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
John Brannon1 appeals his conviction and sentence for conspiracy
to possess with intent to distribute cocaine and cocaine base.2 Counsel
filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967),
contending that there are no meritorious issues to appeal, but raising
the issue of whether the district court fully advised Brannon of the
nature and consequences of his guilty plea. Brannon filed a pro se
supplemental brief raising the issues of (1) diminished capacity, (2)
ineffective assistance of counsel, (3) the court's failure to make fac-
tual findings under FED. R. CRIM. P. 32(c)(3)(D), (4) violations of FED.
R. CRIM. P. 11, and (5) the court's failure to depart downward from
the sentencing guidelines. Finding no reversible error after a review
of the entire record, we affirm.
At the FED. R. CRIM. P. 11 colloquy, the district court thoroughly
questioned Brannon to ensure he was competent to enter a plea, and
that he understood the nature and consequences of his plea. Specifi-
cally, the court inquired into Brannon's education, mental health, use
of drugs or medication, and whether Brannon understood all the rights
he was forfeiting by pleading guilty. When Brannon expressed some
reservation about his attorney's explanation of the plea agreement, the
district court halted the proceedings and directed counsel to again
explain every provision to Brannon's satisfaction. After conferring
with counsel, Brannon acknowledged that he now understood every
provision of the plea agreement and still wished to plead guilty. Bran-
non acknowledged that he understood his rights, was satisfied with
counsel, understood the consequences of his plea, and was freely and
voluntarily pleading guilty.
However, in his pro se supplemental brief, Brannon now claims
that his lack of education and low intelligence made him incapable of
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1 The presentence report and Appellant's supplemental brief reflect that
the correct spelling of his name is "Brandon." However, because the
appeal was docketed under the spelling "Brannon", the spelling used by
the district court, this opinion uses that spelling.
2 21 U.S.C. §§ 841(a)(1) & 846 (1988).
2
entering a knowing and voluntary plea. In order to show incompe-
tence to plead guilty, Brannon must establish that"when he pleaded
guilty that he was incapable of full understanding and appreciation of
the charges against him or comprehending his constitutional rights
and of realizing the consequence of the plea," 3 which Brannon fails
to do. Both counsel and the district court had the opportunity to
observe and speak with Brannon, and neither believed him incompe-
tent. We will not disturb the district court's finding of Brannon's
competence to plead guilty. Accordingly, the plea agreement should
be upheld because Brannon made an intelligent and informed decision
when he competently and voluntarily pled guilty. 4
In his pro se supplemental brief, Brannon claims that the district
court failed to make adequate factual findings under FED. R. CRIM. P.
11, and FED. R. CRIM. P. 32(c)(3)(D). Brannon's assertions are merit-
less. As discussed previously, the district court conducted a complete
Rule 11 colloquy. The district court may find a factual basis for a plea
"from anything that appears on the record," 5 and when asked about his
actions, Brannon stated, "I buy crack and I sell it." Further, factual
findings under Rule 32(c)(3)(D) only apply to offenses committed
prior to November 1, 1987; thus the rule is inapplicable in this case.
Next, Brannon's claim that the district court erred by failing to
depart downward from the sentencing guidelines is without merit.
Departures are warranted only in unusual cases, 6 and the district
court's failure to depart from the sentencing guidelines is unreview-
able on appeal.7
Finally, we do not consider Brannon's claim of ineffective assis-
tance of counsel. Ineffective assistance of counsel claims are not
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3 United States v. Truglio, 493 F.2d 574, 578 (4th Cir. 1974).
4 North Carolina v. Alford, 400 U.S. 25, 31 (1970); Boykin v. Alabama,
395 U.S. 238, 242 (1969).
5 United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991), cert.
denied, 503 U.S. 997 (1992).
6 United States v. Bolden, 889 F.2d 1336 (4th Cir. 1989).
7 United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.), cert. denied,
498 U.S. 819 (1990).
3
properly brought on direct appeal unless it is conclusively shown on
the face of record.8 The record does not so establish.
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 in this court for leave to withdraw from representation. Coun-
sel's motion must state that a copy was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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8 United States v. Fisher, 477 F.2d 300, 302 (4th Cir. 1973).
4