United States v. Gray , 271 F. App'x 304 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4886
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ELLIOTT GRAY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(1:07-cr-00129-WDQ)
Submitted: March 17, 2008 Decided: April 2, 2008
Before WILKINSON and MOTZ, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Paresh S. Patel, Staff
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt,
Maryland, for Appellant. Kwame Jangha Manley, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Elliott Gray pled guilty pursuant to a plea agreement to
possession with intent to distribute cocaine base in violation of
21 U.S.C. § 841(a) (2000). In accordance with the sentencing range
agreed to by Gray in his Fed. R. Crim. P. 11(c)(1)(C) plea
agreement, the district court sentenced Gray to 188 months in
prison. Gray’s counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), alleging that he has found no
meritorious issues for appeal. The Government has declined to file
a responsive brief. Gray has filed pro se supplemental briefs
raising several allegations of error by the district court, as well
as an ineffective assistance of counsel claim. Finding no error,
we affirm.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
review. The district court conducted a thorough Rule 11 hearing,
ensuring that Gray’s plea was knowing and voluntary, that he
understood the terms of his plea agreement, that he understood the
rights he was giving up by pleading guilty, and that he committed
the offense to which he was pleading guilty.
We also find that the district court’s imposition of a
188-month sentence was reasonable because it was imposed pursuant
to a properly calculated sentencing range to which Gray agreed in
his plea agreement. See Fed. R. Crim. P. 11(c)(1)(C) (providing
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that a plea agreement setting forth the appropriate sentencing
range is binding on the district court once the plea is accepted);
see also Rita v. United States, 127 S. Ct. 2456, 2462 (2007)
(holding that a sentence within a properly calculated guidelines
range is entitled to a presumption of reasonableness).
Although Gray’s pro se supplemental briefs make several
allegations of error, we find that none of the allegations raise
meritorious issues for appeal. For instance, although Gray claims
the district court threatened him to plead guilty, he attested at
the Rule 11 hearing that no one threatened or forced him to plead
guilty and that he was pleading guilty of his own free will. These
statements are presumed true and cannot be overcome by subsequent
unsupported allegations. See Blackledge v. Allison, 431 U.S. 63,
73-74 (1977); see also United States v. DeFusco, 949 F.2d 114, 119
(4th Cir. 1991) (holding defendant’s statement at Fed. R. Crim. P.
11 hearing that he was neither coerced nor threatened was “strong
evidence of the voluntariness of his plea”).
Gray also summarily states that his attorney was
ineffective because he “never provided a defense.” An ineffective
assistance of counsel claim, however, should be asserted in a
post-conviction motion under 28 U.S.C. § 2255 (2000) rather than on
direct appeal. See United States v. Richardson, 195 F.3d 192, 198
(4th Cir. 1999). Although we have recognized an exception to the
general rule when “it ‘conclusively appears’ from the record that
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defense counsel did not provide effective representation,” id., the
record does not conclusively establish Gray’s counsel was
ineffective. During the plea colloquy, Gray informed the district
court that he was made aware of the charge against him by his
attorney, that he discussed the “ways of defending against the
charge” against him with his attorney, and that he believed it was
in his best interest to plead guilty. Gray also assured the
district court that he discussed the terms of his plea agreement
with his attorney, and that he was satisfied with his attorney’s
services. Accordingly, we conclude that Gray’s ineffective
assistance of counsel claim is not cognizable on appeal. See
Blackledge, 431 U.S. at 73-74.
Although there is some indication in the record that
counsel believed Amendment 706, which amended U.S. Sentencing
Guidelines Manual (“USSG”) § 2D1.1, would be beneficial to Gray,
Amendment 706 offers Gray no relief. Gray’s sentence was properly
calculated based on the guidelines in effect at the time of his
August 2007 sentencing. See USSG § 1B1.11 (2006).*
*
We note that, although Amendment 706 lowered the base offense
level for crack offenses effective November 1, 2007, because Gray
was properly designated a career offender under USSG § 4B1.1, his
base offense level of 34 was determined by the statutory maximum
sentence applicable to his offense. See 21 U.S.C. § 841(b)(1)(B)
(2000); USSG § 4B1.1(b)(B) (2006). Thus, although Gray’s base
offense level based on the amount of crack cocaine he possessed
would be lower because of Amendment 706, it is ultimately of no
consequence.
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We therefore 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 renew in this court his motion 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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