United States v. Porter ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4022
KASHMA PORTER, a/k/a Rick
Hampton,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
William B. Traxler, Jr., District Judge.
(CR-96-480, CR-97-456)
Submitted: February 16, 1999
Decided: March 15, 1999
Before WIDENER, ERVIN, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. David Calhoun Stephens, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kashma Porter pled guilty to ten counts of wire fraud pursuant to
a plea agreement. The district court sentenced Porter to serve sixty-
four months imprisonment followed by three years of supervised
release and to pay restitution in the amount of $552,518. Porter
appeals his convictions and sentence. Porter's attorney has filed a
brief in accordance with Anders v. California, 386 U.S. 738 (1967),
raising four issues but indicating that, in his view, there are no merito-
rious issues for appeal. Porter was informed of his right to file a pro
se supplemental brief, but he has not done so.
First, Porter's counsel raises the question of whether the district
court complied with the requirements outlined in Fed. R. Crim. P. 11
when taking Porter's pleas.* Following a de novo review of the entire
record, we conclude that the district court complied with all the man-
dates of Rule 11 in accepting Porter's guilty pleas.
Second, counsel raises the propriety of the district court's decision
to increase Porter's offense level under U.S. Sentencing Guidelines
Manual § 3C1.1 (1997) for obstruction of justice. Porter withdrew his
objection to the increase at sentencing. Thus, we review the court's
decision only for plain error. See United States v. Perkins, 108 F.3d
512, 516 (4th Cir. 1997).
The enhancement was based on two parts of Porter's testimony. He
testified at a suppression hearing that he only consented to the search
because agents told him that they would put him in jail if he did not
consent. A Government agent testified at the same hearing that there
was no coercion and that Porter voluntarily consented to the search.
Further, Porter testified at his bond revocation hearing about his
knowledge of Lonnie Riley's fugitive status at the time he gave Riley,
a person indicted in the Tennessee case, a ride to an acquaintance's
_________________________________________________________________
*Porter actually had two Rule 11 hearings. At one, he pled guilty to
nine counts of wire fraud. At the second, he pled guilty to one count of
wire fraud in Tennessee under Fed. R. Crim. P. 20. The colloquy at each
hearing was substantially the same.
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house. Porter stated that he did not know that Riley was a fugitive.
Two co-defendants testified that they were with Porter in court before
the date of the ride when an IRS agent testified that Riley was a fugi-
tive. The court found that Porter lied at both hearings and knowingly
harbored a fugitive. Given these facts, the district court did not com-
mit plain error when it enhanced Porter's sentence for obstruction of
justice on the basis of perjury.
Third, Porter's counsel raises the issue of whether the district court
plainly erred by enhancing Porter's sentence under USSG § 3A1.1
because the offense involved "vulnerable victims." In his plea agree-
ment, Porter acknowledged that the vulnerable victim enhancement
would apply. Further, at sentencing, Porter admitted that his fraudu-
lent scheme specifically targeted the elderly. Thus, we easily find that
the district court properly applied the guidelines. See United States v.
Cron, 71 F.3d 312, 314 (8th Cir. 1995).
Finally, Porter's counsel challenges trial counsel's performance.
However, we do not review claims of ineffective assistance on direct
appeal unless the record conclusively demonstrates counsel's ineffec-
tiveness, see United States v. DeFusco, 949 F.2d 114, 120-21 (4th
Cir. 1991), which is not the case here. Therefore, any such claim must
be raised in a collateral attack.
In accordance with the requirements of Anders, we have examined
the entire record in this case and find no other meritorious issues for
appeal. Thus, we affirm Porter's convictions and sentence.
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 thereof 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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