United States v. Richards , 314 F. App'x 522 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4716
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ORVILLE RICHARDS, a/k/a James Ray,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:06-cr-00192-F)
Submitted: May 30, 2008 Decided: July 8, 2008
Before MICHAEL and KING, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Richard Croutharmel, Raleigh, North Carolina, for Appellant. Anne
Margaret Hayes, 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Unpublished opinions are not binding precedent in this circuit.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, Orville
Richards pled guilty to conspiracy to make false statements to gun
dealers in connection with the acquisition of firearms, in
violation of 18 U.S.C. § 371 (2000). He was sentenced to sixty
months in prison. Richards now appeals. His attorney has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
raising three issues but stating that there do not appear to be any
meritorious issues for appeal. Richards has filed a pro se
supplemental brief raising additional issues. Finding no
reversible error, we affirm.
I
Richards contends that his guilty plea was not
voluntarily and knowingly entered. Our review of the transcript of
his arraignment discloses that the proceeding was properly
conducted under Fed. R. Crim. P. 11. This “raise[s] a strong
presumption that the plea is final and binding.” See United
States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992). Further, a
defendant’s declarations during the plea colloquy “carry a strong
presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74
(1977).
Richards represented at his Rule 11 hearing that he was
entering his plea freely and voluntarily with a full understanding
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of the charges against him, the penalties he faced, the rights he
waived by pleading guilty, and the applicability of the sentencing
guidelines and the statutory factors set forth at 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2007). When he entered his plea,
Richards was twenty-seven and had completed both high school and
technical school. He informed the court that a summary of the plea
agreement that was read into the record was correct. Richards
admitted that he had committed the offense and was guilty as
charged. Finally, Richards expressed his satisfaction with his
attorney’s services. Under these circumstances, we conclude that
the plea was both knowing and voluntary.
II
Richards asserts that the district court failed to
properly inquire about his waiver of his appellate rights. We note
first that this claim is moot because the Government did not seek
enforcement of the waiver, and all issues raised in the appellate
briefs are addressed in this opinion. In any event, our review of
the transcript of the Rule 11 proceeding discloses that the
district court sufficiently explored Richards’ understanding of the
waiver.
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III
In his pro se brief, Richards states that the Government
stipulated in the plea agreement that he was entitled to a three-
level downward adjustment based on his acceptance of
responsibility. See U.S. Sentencing Guidelines Manual § 3E1.1
(2005). At sentencing, however, the Government did not argue in
favor of this adjustment, which Richards did not receive. Richards
contends that the Government thus breached the agreement.
Although the Government did stipulate that Richards was
entitled to the adjustment, the plea agreement also stated that the
stipulation was “not binding on the Court in its application of the
advisory Guideline range,” and noted “that if Defendant’s conduct
prior to sentencing changes the circumstances with respect to any
such factor, the United States is no longer bound to its position
as to that factor.” Richards’ probation officer reported that
Richards had not accepted responsibility, and the district court
found that he was not entitled to the adjustment. The Government
therefore did not breach the plea agreement.
IV
Although Richards contends that the district court
exhibited bias against him at sentencing, our review of the
sentencing transcript shows no bias. The district judge made no
comment that would suggest “an apparent disposition toward a party
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that is wrongful or inappropriate.” See United States v. Gordon,
61 F.3d 263, 267 (4th Cir. 1995). The fact that the court ruled
against Richards with respect to several sentencing matters does
not demonstrate bias. See Liteky v. United States, 510 U.S. 540,
555 (1994) (stating judicial rulings rarely “evidence the degree of
favoritism or antagonism required [to make fair judgment
impossible] when no extrajudicial source is involved”).
V
Counsel states that Richards believes the prosecutor
withheld taped recordings of telephone conversations, in violation
of Brady v. Maryland, 373 U.S. 83 (1963). Under Brady, the
Government has a responsibility to disclose evidence favorable to
the accused when the evidence is material to guilt or punishment.
Id. at 87; Monroe v. Angelone, 323 F.3d 286, 299 (4th Cir. 2003).
To obtain relief under Brady, a defendant must show that: (1) the
evidence is favorable to the defendant; (2) the Government
suppressed the evidence; and (3) the documents subject to
disclosure exist and were not disclosed.
Richards’ claim lacks merit. First, Richards did not
substantiate that the recordings exist. Even if they do exist and
are exculpatory, however, the prosecution’s failure to disclose
them is not reversible error. The failure to disclose Brady
evidence prior to a guilty plea does not establish a constitutional
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violation because impeachment information is a safeguard for a fair
trial, not a plea. United States v. Ruiz, 536 U.S. 622, 633
(2002). Further, under Tollett v. Henderson, 411 U.S. 258, 267
(1973), Richards’ valid guilty plea waives this claimed
nonjurisdictional defect.
VI
Richards contends that trial counsel was ineffective
because he did not properly review all the evidence before advising
Richards to plead guilty and because counsel coerced the guilty
plea. We note that the latter claim is at odds with Richards’
solemn statements at arraignment that his guilty plea was freely
and voluntarily entered. In any event, to allow for adequate
development of the record, a defendant must ordinarily bring a
claim of ineffective assistance in a 28 U.S.C. § 2255 (2000)
motion, unless ineffectiveness conclusively appears on the face of
the record. United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999); United States v. King, 119 F.3d 290, 295 (4th Cir.
1997). Our review of the record does not disclose ineffectiveness.
VII
We have examined the entire record in this case in
accordance with the requirements of Anders, and we find no
meritorious issues for appeal. Accordingly, we affirm. This court
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requires 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, counsel may move
in this court for leave to withdraw from representation. Counsel’s
motion must state that a copy of the motion 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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