United States v. Pressley , 170 F. App'x 261 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4590
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARRELL BERNARD PRESSLEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (CR-02-930)
Submitted: January 25, 2006 Decided: February 24, 2006
Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas G. Nessler, Jr., Surfside Beach, South Carolina, for
Appellant. Alfred William Walker Bethea, Jr., Assistant United
States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Darrell Bernard Pressley pled guilty pursuant to a plea
agreement to one count of conspiracy to distribute and possess with
intent to distribute fifty grams or more of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), 846 (2000).1 Pressley was
sentenced to a 168-month term of imprisonment. We affirm the
conviction and sentence.
Because the district court determined Pressley was
responsible for 1,428.65 grams of cocaine base and 7,708.75 grams
of powder cocaine, Pressley was assigned a base offense level of
thirty-eight.2 See U.S. Sentencing Guidelines Manual § 2D1.1(c)(1)
(2002). The district court applied a three-level adjustment for
acceptance of responsibility, thereby giving Pressley an adjusted
offense level of thirty-five. Because Pressley was assessed no
criminal history points, he was placed in criminal history category
I. The resulting guideline range was 168 to 210 months.
As Pressley did not object, the district court adopted
the findings in the Presentence Investigation Report. Pressley’s
counsel moved the district court for a downward departure, alleging
1
Pressley consented to enter his plea before a magistrate
judge pursuant to 28 U.S.C. § 636 (2000).
2
The district court converted the two substances into their
marijuana equivalents in order to obtain a single offense level.
See USSG § 2D1.1, comment. (n.10). The total drug weight was
therefore determined to be 30,115 kilograms of marijuana, which
resulted in a base offense level of thirty-eight.
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Pressley “has not been in good health his entire life” and must
take “a number of medications . . . on a daily basis.” The
district court determined that “[t]he physical ailments Mr.
Pressley has, though they are regrettable, they are not sufficient
to warrant downward departure.” Consequently, the court denied the
motion for downward departure and sentenced Pressley to
imprisonment for 168 months.
Pressley filed a 28 U.S.C. § 2255 (2000) motion on
February 23, 2004, in which he alleged, among other claims, that
his counsel failed to note an appeal after Pressley requested that
he do so. In an affidavit filed May 11, 2005, Pressley’s counsel
stated that he had “no direct independent recollection of
discussing the matter of appeal with Mr. Pressley . . . .”
Therefore, the district court granted relief on this claim and,
pursuant to United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993),
vacated Pressley’s judgment of conviction and entered a new
judgment from which Pressley could appeal.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), questioning whether the magistrate
judge fully complied with the requirements of Rule 11 and whether
Pressley’s sentence was reasonable. Pressley filed a supplemental
brief, contending that the district court improperly enhanced his
sentence for drug weights that were neither admitted to nor found
by a jury beyond a reasonable doubt, and that the district court
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erred by entering a new criminal judgment without conducting a new,
formal sentencing hearing.
Because Pressley did not seek to withdraw his guilty plea
in the district court, we review any alleged Rule 11 error for
plain error. See United States v. Martinez, 277 F.3d 517, 524-26
(4th Cir. 2002). We “may notice an error that was not preserved .
. . only if the defendant can demonstrate (1) that an error
occurred, (2) that it was plain error, and (3) that the error was
material or affected the defendant’s substantial rights.” Id. at
524. We have reviewed the record and find no error.
We also reject Pressley’s contention that the district
court erred when it enhanced his sentence with drug weights that
were neither admitted to nor found by a jury beyond a reasonable
doubt. Because Pressley raises this issue for the first time on
appeal, review is for plain error. See United States v. Evans, 416
F.3d 298, 300 (4th Cir. 2005). To establish that a Sixth Amendment
error occurred during sentencing, a defendant must show that the
district court imposed a sentence exceeding the maximum allowed
based only on the facts to which he admitted. Id.If the district court had sentenced Pressley in
accordance with the lowest drug weight to which he admitted, 1.5
kilograms of cocaine base,3 his base offense level would have been
3
Both the Government and Pressley “stipulate[d] and agree[d]
that the quantity of cocaine base involved is in excess of 1½ kilos
with a base offense level of 38 for purposes of calculating
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thirty-eight. See USSG § 2D1.1(c)(1). Based on an offense level
of thirty-eight and a criminal history category of I, Pressley’s
guideline range would have been 235 to 293 months’ imprisonment.
See USSG Ch. 5, Pt. A (2002) (sentencing table). Because
Pressley’s sentence of 168 months is below the maximum authorized
by the facts to which he admitted, no Sixth Amendment error
occurred. See Evans, 416 F.3d at 300.
However, “even in the absence of a Sixth Amendment
violation, the imposition of a sentence under the former mandatory
guidelines regime rather than under the advisory regime outlined in
Booker is error.” United States v. White, 405 F.3d 208, 216-17
(4th Cir.), cert. denied, 126 S. Ct. 668 (2005). We have declined
to presume prejudice, id. at 217-22, and instead have held that the
prejudice inquiry is “whether after pondering all that happened
without stripping the erroneous action from the whole, . . . the
judgment was . . . substantially swayed by the error.” Id. at 223(internal quotation marks and citations omitted). Therefore, to
make this showing, a defendant must “demonstrate, based on the
record, that the treatment of the guidelines as mandatory caused
the district court to impose a longer sentence than it otherwise
would have imposed.” Id. at 224.
[Pressley’s] sentence pursuant to the United States Sentencing
Commission Guidelines.”
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The district court’s 168-month sentence was at the lowest
end of the guideline range, as determined by the court. Because
the record does not reveal a nonspeculative basis for concluding
that the district court would have imposed a shorter sentence had
it known it possessed discretion to do so, we conclude that
Pressley cannot demonstrate that the district court’s plain error
in sentencing him under a mandatory guidelines regime affected his
substantial rights.
We likewise reject Pressley’s argument that a defendant
is entitled to a new sentencing hearing when a district court
reenters a criminal judgment pursuant to United States v. Peak, 992
F.2d 39 (4th Cir. 1993).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly we affirm Pressley’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 petition would be frivolous, then
counsel may move 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
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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