United States v. Delestin , 54 F. App'x 165 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4358
RICARDO DELESTIN, a/k/a Rick,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CR-99-23-3)
Submitted: November 27, 2002
Decided: January 8, 2003
Before TRAXLER and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Morgan B. Hayes, Charleston, West Virginia, for Appellant. Thomas
E. Johnston, United States Attorney, Thomas O. Mucklow, Assistant
United States Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. DELESTIN
OPINION
PER CURIAM:
Ricardo Delestin appeals the district court’s order sentencing him
to 144 months imprisonment and three years of supervised release for
violations of 21 U.S.C. § 841(a)(1) (2000) and 18 U.S.C. § 2 (2000).
Delestin’s attorney has filed a brief in accordance with Anders v. Cal-
ifornia, 386 U.S. 738 (1967). Although counsel states that there are
no meritorious issues for appeal, he does raise several issues in the
brief. Delestin has filed a supplemental brief. In accordance with
Anders, we have considered the briefs and examined the entire record
for meritorious issues. We find no error and affirm.
On appeal, Delestin’s counsel raises three issues: (i) ineffective
assistance of counsel; (ii) inadequacy of Delestin’s guilty plea; and
(iii) violations of Apprendi v. New Jersey, 530 U.S. 466 (2000). Like-
wise, in his supplemental brief, Delestin argues that his counsel at
sentencing rendered ineffective assistance and that his guilty plea was
involuntary.
At his sentencing hearing, Delestin testified, under oath, that he
was satisfied with his counsel. Thus, his claim of ineffective assis-
tance is foreclosed on direct appeal. See United States v. DeFusco,
949 F.2d 114, 120 (4th Cir. 1991) (holding that ineffective assistance
of counsel claims are not considered on direct appeal unless counsel’s
ineffectiveness conclusively appears on the face of the record).
Delestin’s claim that his guilty plea was involuntary also must fail.
Violations of Fed. R. Crim. P. 11 are evaluated for harmless error.
United States v. Damon, 191 F.3d 561, 564 n.2 (4th Cir. 1999) (citing
United States v. Goins, 51 F.3d 400, 402 (4th Cir. 1995)). Further-
more, a defendant is bound by representations made during a plea col-
loquy relating to the voluntariness of the plea absent clear and
convincing evidence to the contrary. Burket v. Angelone, 208 F.3d
172, 191 (4th Cir. 2000). Because the transcript of the guilty plea
hearing reveals that the district court complied with Rule 11, because
Delestin testified, under oath, that his plea was not the result of any
coercion, threats, or harassment, and because he has produced no evi-
UNITED STATES v. DELESTIN 3
dence to rebut this testimony, Delestin’s argument that his guilty plea
was involuntary is without merit.
Likewise, Delestin’s arguments based on Apprendi must fail.
Apprendi is applicable only where a fact, other than that of a prior
conviction, increases the penalty for a crime beyond the prescribed
statutory maximum. 530 U.S. at 490. Although Delestin was sen-
tenced to 144 months imprisonment, the maximum statutory penalty
pursuant to § 841 is twenty years imprisonment. United States v. Kin-
ter, 235 F.3d 192, 199-200 (4th Cir. 2000). Thus, because Delestin’s
sentence did not exceed the prescribed statutory maximum, his reli-
ance on Apprendi is misplaced and these claims must fail.
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. We there-
fore affirm Delestin’s conviction and sentence. 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 peti-
tion 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 conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED