United States v. Mullins ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4257
STEPHEN MULLINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-96-122)
Submitted: May 29, 1998
Decided: September 10, 1998
Before ERVIN, LUTTIG, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Jane Charnock, CHARNOCK & CHARNOCK, Charleston, West
Virginia, for Appellant. Rebecca A. Betts, United States Attorney,
Susan M. Arnold, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Stephen Mullins appeals his conviction and sentence after a guilty
plea to conspiracy to distribute and possess with intent to distribute
methamphetamine in violation of 21 U.S.C. § 846 (1994). Mullins'
attorney has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), raising two issues but stating that, in her view, there
are no meritorious grounds for appeal. Mullins has filed a supplemen-
tal brief pro se, raising four additional issues. After a thorough review
of the record, we affirm.
Mullins' counsel first contends that the district court erred in deny-
ing Mullins' pro se motion to withdraw the guilty plea because coun-
sel was ineffective for failing to make the motion. For ineffective
assistance of counsel to constitute a fair and just reason to withdraw
a guilty plea, it must be of constitutional magnitude. See United States
v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc). Mullins
cannot show that counsel's failure to timely file the motion on his
behalf prejudiced him. See United States v. Craig, 985 F.2d 175, 179
(4th Cir. 1993) (providing standard). Even if the motion had been
timely filed, he did not establish, inter alia , that his plea was not
knowing and voluntary. See United States v. Moore, 931 F.2d 245,
248 (4th Cir. 1991) (outlining factors courts consider in ruling on
motion to withdraw).
Mullins also claims that the district court erred in denying his
motion to withdraw his guilty plea because he "just didn't under-
stand" that he could be sentenced as a career offender. Although Fed.
R. Crim. P. 11 does not require the district court to inform Mullins
of this possibility, the court did so. The court also informed Mullins
of the statutory minimum and maximum sentences (the guideline
range based on his classification as a career offender fell within that
range), that the guideline range could not be determined until a pre-
sentence report was prepared, and otherwise fully complied with Rule
11. See United States v. Wilson, 81 F.3d 1300, 1307 (4th Cir. 1996)
("The key to a [Rule] 32(e) motion is whether or not the Rule 11 pro-
ceeding was properly conducted."). On these facts, we find no abuse
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of discretion in the district court's denial of the motion to withdraw.
See id. at 1305.
Mullins' counsel also disputes that Mullins was a career offender.
We review this issue de novo. See United States v. Dickerson, 77 F.3d
774, 775 (4th Cir.), cert. denied, #6D6D 6D# U.S. ___, 65 U.S.L.W. 3259(U.S. Oct. 7, 1996) (No. 95-9207). Mullins was in his thirties when
he committed the offense, he pled guilty to conspiracy to distribute
methamphetamine (a controlled substance offense), and he had two
prior felony convictions for armed robbery and aggravated assault
(crimes of violence). See U.S. SENTENCING GUIDELINES MANUAL
§§ 4B1.1, 4B1.2, comment. (n.2) (1994). We also note that Mullins'
1978 armed robbery conviction qualified as a prior felony because
Mullins served a portion of the ten-year sentence during the fifteen-
year period predating the commencement of the instant offense. See
USSG § 4A1.2(e)(1); USSG § 4B1.2, comment. (n.4) (stating that
§ 4A1.2(e)(1) applies to the counting of convictions under § 4B1.1);
United States v. Powell, 922 F.2d 212, 213-14 (4th Cir. 1991). There-
fore, the district court did not err in classifying Mullins as a career
offender. See Dickerson, 77 F.3d at 775.
Mullins raises four claims in his supplemental pro se brief, none of
which merit extended discussion. First, Mullins' claims that his guilty
plea was not knowing and voluntary because he was threatened with
false information provided by his counsel and he was misled by the
plea agreement's failure to contain the word "conspiracy." This claim
is meritless. At the Fed. R. Crim. P. 11 hearing, Mullins stated that
he had not been threatened or coerced and that he understood he was
pleading guilty to conspiracy to distribute methamphetamine. See
United States v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991) (stating
that defendant's statement at Rule 11 hearing that he was not coerced
or threatened constitutes "strong evidence of the voluntariness of his
plea"); Via v. Superintendent, Powhatan Correctional Ctr., 643 F.2d
167, 171 (4th Cir. 1981) (holding that statements made at plea hearing
that facially demonstrate plea's validity are conclusive absent a com-
pelling reason why they should not be, such as ineffective assistance
of counsel). Next, although Mullins claims that the district court held
him accountable for drugs that were not reasonably foreseeable to
him, no plain error resulted given that Mullins was a career offender.
See United States v. Perkins, 108 F.3d 512, 516 (4th Cir. 1997) (stat-
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ing standard of review). Third, Mullins contends that he was not
allowed to present mitigating evidence at sentencing, as required by
Fed. R. Crim. P. 32(c)(3)(C). Because the record belies his claim,
there was no plain error. See United States v. Cole, 27 F.3d 996, 998
(4th Cir. 1994) (applying plain error analysis to claim of denial of
allocution). Finally, Mullins' numerous claims of ineffective assis-
tance of counsel should be raised in a motion under 28 U.S.C.A.
§ 2255 (West 1994 & Supp. 1998), and not on direct appeal, because
the record does not conclusively show that counsel was ineffective.
See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
As required by Anders, we have examined the entire record and
find no other meritorious issues for appeal. Because the record dis-
closes no reversible error, we affirm Mullins' conviction and sen-
tence. This court requires that counsel inform her client, in writing,
of his right to petition the Supreme Court of the United States for fur-
ther 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. Coun-
sel's motion must state that a copy thereof was served on the client.
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
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