United States v. White , 250 F. App'x 524 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4350
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MEGAN TERRANCE RAMON WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:05-cr-01127-TLW)
Submitted: September 28, 2007 Decided: October 10, 2007
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ray Coit Yarborough, Jr., Florence, South Carolina, for Appellant.
Arthur Bradley Parham, OFFICE OF THE UNITED STATES ATTORNEY,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Megan Terrance Ramon White pled guilty to bank robbery
and was sentenced to 144 months in prison. On appeal, his attorney
has filed an Anders1 brief, questioning whether White’s Fed. R.
Crim. P. 11 hearing was properly conducted and whether his sentence
was reasonable, but concluding that there are no meritorious issues
for appeal. White has filed a pro se supplemental brief, arguing
that (1) he was improperly determined to be a career offender,
(2) the court did not take into consideration his mental illness,
and (3) he should not have been given a reckless endangerment
adjustment. After a thorough review of the entire record, we
affirm.
I.
In counsel’s brief, he notes that the district court’s
Rule 11 hearing was thorough and complete with the exception of two
issues. First, he asserts that the district court failed to inform
White that he was subject to the $100 assessment, in violation of
Fed. R. Crim. P. 11(b)(1)(L). Next, he claims that the district
court failed to inform White that he was giving up his right to be
protected from compelled self-incrimination and that the Government
could prosecute him for any false statements made under oath, in
violation of Fed. R. Crim. P. 11(b)(1)(A), (E). However, counsel
concludes that, because the district court’s violation of Rule 11
1
Anders v. California, 386 U.S. 738 (1967).
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did not affect White’s substantial rights, there was no plain
error.
Because White did not move in the district court to
withdraw his guilty plea, counsel correctly notes that any error in
the Rule 11 hearing is reviewed for plain error. United States v.
Martinez, 277 F.3d 517, 526 (4th Cir. 2002). “To establish plain
error, [White] must show that an error occurred, that the error was
plain, and that the error affected his substantial rights.” United
States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Even if
White satisfies these requirements, correction of the error remains
within our discretion, and we will not exercise our discretion
unless the error seriously affects the fairness, integrity or
public reputation of judicial proceedings. Id.; see United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (holding that
“a defendant who seeks reversal of his conviction after a guilty
plea, on the ground that the district court committed plain error
under Rule 11, must show a reasonable probability that, but for the
error, he would not have entered the plea”).
Even assuming that the district court erred at the Rule
11 hearing as counsel alleges, any omissions did not affect White’s
substantial rights. White was clearly aware that he faced a
special assessment and prosecution for false statements, having
been informed of such in both his plea agreement and the summary of
his agreement at the plea hearing. During the plea hearing, White
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acknowledged that he thoroughly reviewed the plea agreement with
his attorney and that he understood its provisions. In addition,
counsel testified that he discussed the rights White was waiving
with him and that White understood. Finally, the record provides
no basis for a conclusion that White would not have pled guilty had
the district court been more exacting in its conduct of the plea
hearing. Accordingly, any error at White’s plea hearing was either
not plain or not a miscarriage of justice. See United States v.
Stead, 746 F.2d 355, 356-57 (6th Cir. 1984) (district court’s
failure to advise a defendant of his right against
self-incrimination did not require guilty plea to be set aside).
II.
Section 4B1.1 of the United States Sentencing Guidelines
provides that a defendant should be classified as a career offender
when (1) the defendant is over eighteen, (2) the instant crime is
a felony that is a crime of violence or a controlled substance
offense, and (3) the defendant has at least two prior felony
convictions for either a crime of violence or a controlled
substance offense. White contends that he should not have been
classified as a career offender because (1) his prior crimes were
not violent and (2) his prior convictions were related and should
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not have been counted separately. Because White did not object at
sentencing, his claims are reviewed for plain error.2
First, White asserts that his convictions for assault and
battery of a high and aggravated nature and threatening a public
official were non-violent, and he presents the factual background
of his crimes and submits state documents showing that the crimes
were classified as non-violent. However, because these crimes are
“by their nature” violent crimes, the actual facts of White’s
crimes are irrelevant to the determination of whether these crimes
were “crimes of violence” for career offender purposes. See United
States v. Pierce, 278 F.3d 282, 288 (4th Cir. 2002) (holding court
should examine the offense as a “category of criminal conduct
defined by the statute” and not “the particular facts underlying
those convictions”).
Second, White asserts that his convictions were
consolidated for sentencing and, thus, should not have counted as
separate convictions. For the purpose of computing criminal
history, sentences for “related cases” are treated as one sentence.
2
White also claims that his attorney was ineffective for
withdrawing all objections to the presentence report. However,
claims of ineffective assistance of counsel are not cognizable on
direct appeal unless the record conclusively establishes
ineffective assistance. United States v. Richardson, 195 F.3d 192,
198 (4th Cir. 1999). Instead, to allow for adequate development of
the record, a defendant generally must bring his ineffective
assistance claims in a motion under 28 U.S.C. § 2255 (2000).
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). We find
that White’s ineffective assistance claims are not conclusively
established by the record.
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See United States Sentencing Guidelines Manual § 4A1.2(a)(2)
(2006). Cases are considered “related” if there was no intervening
arrest and the offenses “(A) occurred on the same occasion,
(B) were part of a single common scheme or plan, or (C) were
consolidated for trial or sentencing.” USSG § 4A1.2 comment.
(n.3).
Here, there was an intervening arrest. See United
States v. Green, 436 F.3d 449, 459 (4th Cir.) (noting that
“intervening arrest” means that “defendant [was] arrested for the
first offense prior to committing the second offense”), cert.
denied, 126 S. Ct. 2309 (2006). White was arrested for assault and
battery on June 12, 1999, and he committed the offense of
threatening a public official on September 23, 1999. Thus, the
convictions were not related, and the district court properly
counted them separately for purposes of determining White’s
criminal history score.
III.
Section 3C1.2 of the Guidelines provides for a two level
adjustment when “the defendant recklessly created a substantial
risk of death or serious bodily injury to another person in the
course of fleeing from a law enforcement officer.” The presentence
report (“PSR”) noted that White led police officers on a high-speed
chase after the robbery. White argues that he did not realize the
police were chasing him until after he crashed his car and that,
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once he fled on foot, he was not endangering anyone. However,
because White did not object below, this argument was not before
the district court. White admitted at his Rule 11 hearing that he
was apprehended after a vehicular pursuit by police officers.
Given the description of the chase at the Rule 11 hearing and in
the PSR, the district court did not commit plain error in imposing
the adjustment. See United States v. Sykes, 4 F.3d 697, 700 (8th
Cir. 1993) (failing to pull over and thereby compelling police to
force defendant off road constitutes reckless endangerment).
IV.
We will affirm a sentence if it “is within the
statutorily prescribed range and is reasonable.” United States v.
Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct.
2054 (2006). “[A] sentence within the proper advisory Guidelines
range is presumptively reasonable.” United States v. Johnson, 445
F.3d 339, 341 (4th Cir. 2006); see Rita v. United States, 127 S.
Ct. 2456, 2462-69 (2007) (upholding application of rebuttable
presumption of reasonableness to within-Guidelines sentence).
Here, the district court sentenced White after
considering and examining the Sentencing Guidelines and the
relevant 18 U.S.C. § 3553(a) (West 2000 & Supp. 2007) factors. The
court expressly stated that it took into account White’s
circumstances and problems, and when rendering judgement, the court
recommended counseling and treatment during White’s incarceration.
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White’s 144-month prison term is within the advisory Guideline
range and is below the statutory maximum. We therefore conclude
that the sentence is reasonable.
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm the district court’s judgment. This court
requires that 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, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
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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