United States v. Hudson ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4298
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICHARD DOYLE HUDSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Lacy H. Thornburg,
District Judge. (CR-03-28)
Submitted: October 31, 2005 Decided: November 30, 2005
Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Camille M. Davidson, THE FULLER LAW FIRM, P.C., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Kimlani S. Murray, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Richard Doyle Hudson pled guilty to two counts of bank
robbery, in violation of 18 U.S.C. § 2113(a) (2000), and using or
carrying a firearm during and in relation to a crime of violence,
in violation of 18 U.S.C.A. § 924(c) (West 2000 & Supp. 2005). The
district court sentenced him as a career offender to a total of 262
months of imprisonment. Hudson appeals his conviction and
sentence, asserting that counsel provided ineffective assistance
during plea negotiations, the Government engaged in prosecutorial
misconduct, and his sentence violates the Sixth Amendment. Hudson
has filed two motions in this court to file a pro se supplemental
brief. We grant his motions, reject the claims raised in his pro
se supplemental brief, and affirm his convictions and sentence.
Hudson contends that counsel provided ineffective
assistance by estimating his potential sentence using the wrong
version of the sentencing guidelines. However, “[i]neffective
assistance claims are not cognizable on direct appeal unless
counsel’s ineffectiveness conclusively appears on the record.”
United States v. James, 337 F.3d 387, 391 (4th Cir. 2003), cert.
denied, 540 U.S. 1134 (2004). We find that counsel’s
ineffectiveness does not conclusively appear on the face of this
record. See United States v. Craig, 985 F.2d 175, 180 (4th Cir.
1993) (rejecting claim that counsel was ineffective in discussing
sentencing possibilities under two plea agreements offered by
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Government where defendant “ultimately entered his plea based on
risk information given him by the sentencing court, not his
counsel”). We therefore decline to address this issue on direct
appeal.
Next, Hudson contends that the Government engaged in
prosecutorial misconduct because the plea agreement accepted by the
district court did not provide that he would be sentenced under the
2001 version of the sentencing guidelines. We review “a claim of
prosecutorial misconduct . . . to determine whether the conduct so
infected the trial with unfairness as to make the resulting
conviction a denial of due process.” United States v. Scheetz, 293
F.3d 175, 185 (4th Cir. 2002) (internal quotation marks and
citation omitted). Our review of the record leads us to conclude
that no due process violation occurred.
Finally, Hudson contends that, in light of Blakely v.
Washington, 542 U.S. 296 (2004), his sentence violates the Sixth
Amendment. His claim is foreclosed by our decision in United
States v. Collins, 412 F.3d 515, 521-23 (4th Cir. 2005) (holding
that application of career offender enhancement falls within
exception for prior convictions reaffirmed in United States v.
Booker, 125 S. Ct. 738 (2005), where facts were undisputed, making
it unnecessary to engage in further fact finding about prior
conviction). We therefore find no Sixth Amendment error.
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Accordingly, we affirm Hudson’s conviction and
sentence. 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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