United States v. Samuel ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4289
DARRELL W. SAMUEL,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-94-773)
Submitted: November 19, 1996
Decided: December 6, 1996
Before WIDENER, MURNAGHAN, and HAMILTON,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Lourie Augustus Salley, III, Lexington, South Carolina, for Appel-
lant. J. Rene Josey, United States Attorney, Kelly E. Shackelford,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Darrell W. Samuel entered a guilty plea pursuant to a
plea agreement to conspiracy to possess with intent to distribute
cocaine and cocaine base ("crack") in violation of 21 U.S.C. §§ 841,
846 (1994). The court later denied Samuel's motion to withdraw his
guilty plea and sentenced him to life imprisonment. Samuel then
noted his appeal through counsel. Samuel's counsel has filed in this
Court a brief in accordance with Anders v. California, 386 U.S. 738(1967), in which he raises three issues, but states that, in his view,
there are no meritorious issues for appeal. Samuel was informed of
his right to file a pro se supplemental brief, which he has done. We
affirm.
Samuel's counsel asserts in the Anders brief that the court erred in
denying his motion for withdrawal of his guilty plea on the basis that
he was not competent to enter it. We find that the court properly
found that Samuel was legally competent to enter the guilty plea. Fur-
thermore, the court did not abuse its discretion in ascertaining that
Samuel failed to demonstrate any "fair and just reason" to withdraw
his guilty plea. See Fed. R. Crim. P. 32(e); United States v. Moore,
931 F.2d 245, 248 (4th Cir.), cert. denied, 502 U.S. 857 (1991).
Appellant next asserts that the court erred in denying a two-level
reduction in base offense level for acceptance of responsibility pursu-
ant to USSG § 3E1.1. In order to receive this reduction, a defendant
must demonstrate he is entitled to the adjustment by a preponderance
of the evidence. United States v. Harris, 882 F.2d 902, 907 (4th Cir.
1989). A guilty plea does not automatically entitle the defendant to
the reduction. Whether such a reduction is warranted is a factual ques-
tion, United States v. Curtis, 934 F.2d 553, 557 (4th Cir. 1991), which
we review for clear error. United States v. Daughtrey, 874 F.2d 213,
217 (4th Cir. 1989). We find no clear error in the court's denial of this
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reduction in offense level. Samuel has consistently delayed resolution
of his case and minimized his involvement in the conspiracy.
The third claim raised in the Anders brief is that the court erred in
granting the Government's motion for a two-level enhancement for
obstruction of justice under USSG § 3C1.1. The Government sought
the enhancement based upon a letter Samuel wrote to a co-defendant
that instructed her how to testify at trial. Samuel directed the witness
to minimize his involvement in the drug conspiracy. The Guidelines
direct that if a defendant "attempted to obstruct or impede, the admin-
istration of justice during the investigation, prosecution, or sentencing
of the instant offense, increase the offense level by 2 levels." USSG
§ 3C1.1. It is undisputed that Samuel wrote the letter in question,
which is just the sort of conduct that § 3C1.1 proscribes. See USSG
§ 3C1.1, comment. (n. 3(a)). Therefore, we find no error in applica-
tion of this enhancement.
In his pro se supplemental brief, Samuel alleges that the court vio-
lated Fed. R. Crim. P. 11 in accepting the guilty plea and did not give
him enough time to review his presentence report. Samuel's claims
in regard to his Rule 11 hearing are totally belied by the record. The
transcript of the hearing discloses that the court complied with every
aspect of Rule 11.
As for review of the presentence report, the record discloses that
even though the court believed that Samuel had already reviewed the
report with his attorney, he adjourned the proceedings to give Samuel
additional time to review the document. Samuel declined to take
advantage of this opportunity. The record also discloses that defense
counsel filed objections to the report and that Samuel was mailed a
copy of the report prior to sentencing. Therefore, this claim is merit-
less.
Samuel next alleges that the prosecution breached the plea agree-
ment because the agreement states that he was pleading guilty to an
offense involving cocaine, not "crack." Again, the record does not
support his claim. Samuel clearly entered a guilty plea to conspiracy
to unlawfully distribute and to possess with intent to distribute
cocaine base (commonly known as "crack") and cocaine. This charge
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is specifically noted in the written plea agreement and was noted by
the court at the Rule 11 hearing.
Samuel also contends that the government breached the plea agree-
ment by "objecting" to a Rule 35 proceeding. Presumably, Samuel is
referring to a motion for reduction of sentence under Fed. R. Crim.
P. 35(b), which permits reduction of a sentence upon motion of the
government based upon substantial assistance of the defendant. There
is no evidence in the record that Samuel has ever rendered substantial
assistance to the government in any way. Therefore, this claim is
meritless.
Samuel next alleges that he received ineffective assistance of coun-
sel for failing to file objections to the presentence report, for failing
to bring the court's attention to unspecified "lost" evidence, and for
failing to file a motion to withdraw the guilty plea. None of these
claims is supported by the record. Samuel has utterly failed to estab-
lish that the conduct of any of his three attorneys fell below any
objective standard of reasonableness. Thus, these claims are meritless.
See Hill v. Lockhart, 474 U.S. 52 (1985); Strickland v. Washington,
466 U.S. 668 (1984). In addition, since the record on direct appeal
does not conclusively demonstrate that Samuel was denied effective
assistance of counsel, such claims should be raised in a habeas corpus
proceeding under 28 U.S.C. § 2255 (1994), amended by Antiterrorism
and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214.
In accordance with Anders, we have reviewed the entire record and
find no meritorious issues for appeal. We note particularly that the
sentencing court carefully weighed factors noted by this Court in
United States v. D'Anjou, 16 F.3d 604, 612-14 (4th Cir.), cert. denied,
___ U.S. ___, 62 U.S.L.W. 3861 (U.S. June 27, 1994) (No. 93-9131),
in imposing the life sentence. We therefore affirm the district court's
orders in all respects. This court requires that counsel inform his cli-
ent, in writing, of his right to petition the United States Supreme
Court 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 represen-
tation. Counsel's motion must state that a copy thereof was served on
the client. We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the court
and argument would not aid the decisional process. We also deny
Samuel's motions to strike the Anders brief filed in this appeal and
to relieve his attorney.
AFFIRMED
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