United States v. Derek Richardson , 456 F. App'x 322 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4149
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEREK RICHARDSON, a/k/a Weasel,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrance W. Boyle,
District Judge. (5:10-cr-00152-BO-1)
Submitted: November 29, 2011 Decided: December 6, 2011
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Walter H. Paramore, III, WALTER H. PARAMORE, III, P.C.,
Jacksonville, North Carolina, for Appellant. Jennifer P. May-
Parker, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In accordance with a written plea agreement, Derek
Richardson pled guilty to possession with intent to distribute
five grams or more of cocaine base, 21 U.S.C. § 841(a)(1)
(2006). Richardson was sentenced to 210 months in prison. He
now appeals. His attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), raising one issue but
stating that there are no meritorious issues for appeal.
Richardson has filed a pro se supplemental brief raising
additional issues. We affirm.
I
Richardson contends in his pro se brief that his plea
was involuntary because the court failed to advise him at the
Fed. R. Crim. P. 11 hearing of the applicability of the Fair
Sentencing Act of 2010 (the FSA). Richardson committed the
offense on January 18, 2009, when the penalty for his offense
was five to forty years in prison. The FSA, which became
effective on August 3, 2010, lowered the penalty to “not more
than twenty years.” 21 U.S.C.A. § 841(b)(1)(C) (West Supp.
2011). Richardson believes that the court’s failure to inform
him of the statutory amendment at the August 16, 2010 plea
proceeding rendered his plea involuntary.
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Because Richardson did not move in the district court
to withdraw his plea, we review the Rule 11 hearing for plain
error. See United States v. Martinez, 277 F.3d 517, 525-26 (4th
Cir. 2002). After carefully reviewing the transcript of the
Rule 11 hearing, we discern no such error. We note that the
district court correctly advised Richardson that he was subject
to a term of imprisonment of five to forty years. Under the
Savings Statute, 1 U.S.C. § 109 (2006), a defendant generally is
not entitled to “application of ameliorative criminal sentencing
laws repealing [or amending] harsher ones in force at the time
of the commission of the crime.” See United States v. Bullard,
645 F.3d 237, 248 (4th Cir. 2011). Thus, Richardson’s plea was
not rendered involuntary by the failure of the district court to
advise him about the FSA.
Richardson also argues that his plea was involuntary
because the district court did not inquire about his claimed
attention deficit hyperactivity disorder (ADHD) or the impact of
his having only an eighth grade education on the voluntary and
knowing nature of his plea. Richardson did not mention at the
hearing that he suffers from ADHD. Further, the district court
substantially complied with Rule 11, and Richardson was
represented by counsel at the hearing. We conclude that he has
not presented “credible evidence that his plea was not knowing
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or otherwise involuntary.” See United States v. Ubakanma, 215
F.3d 421, 424 (4th Cir. 2000).
II
Both counsel in the Anders brief and Richardson in his
pro se brief contend that the 210-month sentence is unreasonable
because Richardson did not receive the benefit of the FSA. We
review a sentence for reasonableness, applying an abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). This review requires consideration of both the
procedural and substantive reasonableness of the sentence. Id.
We first determine whether the district court correctly
calculated the defendant’s advisory Guidelines range, considered
the applicable 18 U.S.C.A. § 3553(a) (West Supp. 2011) factors,
analyzed the arguments presented by the parties, and
sufficiently explained the selected sentence. United States v.
Lynn, 592 F.3d 572, 575-76 (4th Cir. 2010). If the sentence is
free of procedural error, we then review the substantive
reasonableness of the sentence. Id.
Because Richardson did not raise his contention in the
district court, our review is for plain error. See id. at 577.
Even if the FSA applies retroactively to a defendant, such as
Richardson, whose offense occurred prior to the effective date
of the FSA, but who was sentenced after that date, Richardson
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cannot establish plain error: he was sentenced to 210 months in
prison — within the statutory range established by the FSA; his
advisory Guidelines range under both pre-FSA and post-FSA
Guidelines is 210-262 months; and he was sentenced at the lowest
point of that range.
We conclude that the 210-month sentence is neither
procedurally nor substantively unreasonable. The sentence,
which falls within the properly calculated Guidelines range, is
presumptively reasonable, see United States v. Go, 517 F.3d 216,
218 (4th Cir. 2008), and Richardson has not rebutted this
presumption.
III
Finally, Richardson claims in his pro se brief that
his attorney was ineffective. To allow for adequate development
of the record, a defendant ordinarily must raise a claim of
ineffective assistance of counsel in a 28 U.S.C.A. § 2255 (West
Supp. 2011) motion unless ineffectiveness conclusively appears
on the face of the record. See United States v. Richardson, 195
F.3d 192, 198 (4th Cir. 1999). No such ineffectiveness appears
on the record.
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IV
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none. We therefore
affirm. 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. Counsel’s motion must
state that a copy was served on the client. 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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