United States v. Robeson ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4459
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JASMINE ROCHELLS ROBESON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:02-cr-00140-2)
Submitted: March 21, 2007 Decided: May 4, 2007
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark W. Kinghorn, HELMS MULLISS & WICKER, PLLC, Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Kimlani Murray Ford, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following her guilty plea to one count of conspiracy to
possess with intent to distribute fifty grams or more of cocaine
base, in violation of 21 U.S.C.A. § 841(a)(1), 846 (West 1999 &
Supp. 2006), Jasmine Rochells Robeson was sentenced to 121 months’
imprisonment. Robeson appeals, challenging the validity of her
guilty plea and her sentence.1
Robeson first argues that her guilty plea was not knowing
and voluntary because she was deprived of effective assistance of
counsel. Generally, claims of ineffective assistance of counsel
are not cognizable on direct appeal. United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). Because the record does not
conclusively show that the attorney who represented Robeson at her
plea hearing provided ineffective assistance, see United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir.), cert. denied, 126 S. Ct.
1407 (2006), we decline to review this claim on direct appeal.2
1
The district court imposed sentence in December 2003.
Robeson subsequently filed a motion under 28 U.S.C. § 2255 (2000)
asserting, inter alia, that counsel failed to comply with her
request to file a notice of appeal. Giving Robeson the benefit of
the doubt, the district court granted relief under United States v.
Peak, 992 F.2d 39 (4th Cir. 1993), vacated the criminal judgment,
and reinstated the judgment in March 2006 to afford Robeson the
opportunity to file a direct appeal. The district court denied
relief on the remainder of Robeson’s § 2255 claims. This court
affirmed as modified the district court’s dismissal of the
remainder of Robeson’s § 2255 claims to reflect that the dismissal
was without prejudice. See United States v. Robeson, 194 F. App’x
142 (4th Cir. 2006) (No. 04-7718).
2
Additionally, we note that although Robeson expressed
dissatisfaction with this attorney, she insisted that she wished to
plead guilty and that the court, after considering Robeson’s
position, accepted her guilty plea, permitted withdrawal of
counsel, and advised Robeson that when her new attorney was
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To the extent that Robeson claims that her guilty plea
was not knowing and voluntary due to inadequacies in the Fed. R.
Crim. P. 11 hearing, we note that her challenge is subject to plain
error review because she did not move in the district court to
withdraw her guilty plea. See United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002) (holding that “plain error analysis is the
proper standard for review of forfeited error in the Rule 11
context”). Our review of the record reveals that the plea hearing
substantially comported with the requirements of Rule 11 and that
any variance from Rule 11 did not affect Robeson’s substantial
rights.
Robeson next argues that her sentence should be vacated
because the drugs upon which her sentence was calculated were
seized in violation of the Fourth Amendment. However, the drugs
were seized during Robeson’s arrest, and a valid guilty plea waives
all antecedent nonjurisdictional defects not logically inconsistent
with the establishment of guilt. Menna v. New York, 423 U.S. 61,
62-63 n.2 (1975); Tollett v. Henderson, 411 U.S. 258, 267 (1973).
Thus, Robeson waived her right to challenge the legality of the
search and seizure.
Robeson also claims that the district court erroneously
calculated her sentence using the total weight of the substance
appointed, she could discuss the situation with new counsel and
move to withdraw her guilty plea if she so desired. However,
Robeson never moved to withdraw her guilty plea, and we find that
the district court’s acceptance of Robeson’s guilty plea did not
amount to plain error. United States v. Hughes, 401 F.3d 540, 547-
48 (4th Cir. 2005).
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seized rather than the pure drug weight. This argument is
undermined by the notes to the drug quantity table in the federal
sentencing guidelines that instruct courts to follow the approach
taken by the district court in this case. See U.S. Sentencing
Guidelines Manual § 2D1.1(c), Notes to Drug Quantity Table, (A).
Finally, Robeson challenges the constitutionality of her
sentence in light of United States v. Booker, 543 U.S. 220 (2005).
Because Robeson’s sentence did not exceed the sentence that could
be imposed based on facts she admitted, we find no Sixth Amendment
error.
For these reasons, we affirm Robeson’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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