United States v. Travis Washington ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4086
TRAVIS WASHINGTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Lacy H. Thornburg, District Judge.
(CR-97-225)
Submitted: December 7, 1999
Decided: December 27, 1999
Before WILKINS, MOTZ, and KING, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
E. Fitzgerald Parnell, III, Parmele Calame, POYNER & SPRUILL,
L.L.P., Charlotte, North Carolina, for Appellant. Mark T. Calloway,
United States Attorney, Brian Lee Whisler, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Pursuant to his guilty pleas, Travis Washington was convicted of
one count each of conspiracy to possess with intent to distribute
cocaine and cocaine base (21 U.S.C. § 846 (1994)) and possession
with intent to distribute cocaine base (21 U.S.C.§ 841(a)(1) (1994)).
Washington alleges on appeal that: (1) his guilty plea was not know-
ing or voluntary; (2) the district court improperly calculated his crimi-
nal history score; (3) defense counsel rendered ineffective assistance
by failing to object to errors in his presentence report; (4) the district
court erroneously found that he was a leader or organizer in the con-
spiracy for purposes of USSG § 3B1.1(c);1 and (5) defense counsel
rendered ineffective assistance by allowing him to plead guilty when
the facts did not support the plea.2 Finding no error, we affirm.
The record shows that Washington was part of a large drug con-
spiracy from 1994 to 1997. Washington started out as a street-level
dealer, but moved his way up in the organization as people above him
were arrested. Washington made several trips to New York, New Jer-
sey, and Charlotte, North Carolina, to pick up drugs, and he was
stopped on two of these trips by law enforcement officers, who found
drugs in the vehicle and on his person.
Washington's first three claims center around his belief that the
probation officer erroneously assessed six criminal history points
based on four convictions for driving with a revoked license (two
offenses), driving after drinking, and driving while impaired. Wash-
ington contends that these convictions should not have been counted
because he received a suspended sentence in each. Washington fur-
ther alleges that his plea was not knowing or voluntary because he
was not aware that his sentence would be affected by these convic-
tions.
We review Washington's claim concerning his plea de novo and
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1 U. S. Sentencing Guidelines Manual (1997).
2 Washington raises the last two issues in his pro se supplemental brief.
2
find it to be without merit. See United States v. Marin, 961 F.2d 493,
496 (4th Cir. 1992). The district court went through the plea agree-
ment in great detail and fully advised Washington of his rights. For
his part, Washington stated that he understood that his sentence would
be governed by the Sentencing Guidelines. Washington further
informed the court at sentencing that he had discussed the presentence
report with counsel and agreed with its contents.
Washington asserts on appeal, however, that his agreement was
conditioned on being properly sentenced according to the Guidelines,
and that did not happen in his case. We disagree. The Guidelines
expressly state that the offenses in question should be counted. See
USSG § 4A1.2(c)(1) and comment. (n.5). Although the Guidelines do
not specifically address suspended sentences in the context of this
case, Washington cites to no authority, nor do we find any, supporting
his claim that suspended sentences should not be counted.3 To the
contrary, when considering terms of imprisonment, the focus is on
"the sentence pronounced, not the length of time actually served."
USSG § 4A1.2, comment. (n.2). While Washington was not sen-
tenced to an active term of imprisonment, we nevertheless find this
language persuasive.
We review claims of ineffective assistance of counsel on direct
appeal only when the ineffectiveness "conclusively appears" on the
record. See United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995).
Otherwise, such claims should be raised in the district court in a
habeas corpus proceeding rather than in this court by direct appeal.
See id. Because we find no errors in the presentence report, counsel
was not ineffective for not objecting to its contents.4
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3 See United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990) (burden
is on defendant to show that presentence report is erroneous).
4 Washington also emphasizes trial counsel's statement to the court
during the plea hearing that he did not have any prior convictions. (JA
at 33). There is nothing in the record suggesting one way or the other
whether counsel was unaware of the prior convictions, or whether he
miscalculated their effect on Washington's sentence. Because there is no
clear error on the face of the record, we find it unnecessary to review any
claim of ineffective assistance based on counsel's statement at this time.
Washington's remaining claims are without merit. The district
court sustained defense counsel's objection to a role enhancement.
Thus, there was no finding that he was a leader or organizer. Wash-
ington admitted to the court that he reviewed the facts contained in
the presentence report concerning the offense conduct and that they
were a correct representation of his involvement. As a result, the dis-
trict court properly found that there was a factual basis for Washing-
ton's pleas. We therefore find that there is nothing on the face of the
record showing that counsel was ineffective for allowing Washington
to plead guilty.
Accordingly, we affirm Washington's convictions and sentence.
Washington's motion to file a pro se supplemental brief is granted.
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