United States v. McCall ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4096
KENNETH TYRONE MCCALL, a/k/a
Keyboard,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Anderson.
Henry M. Herlong, Jr., District Judge.
(CR-00-295)
Submitted: July 31, 2001
Decided: August 20, 2001
Before WILLIAMS, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Isaac Louis Johnson, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina,
for Appellee.
2 UNITED STATES v. MCCALL
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kenneth Tyrone McCall was convicted pursuant to his guilty plea
of escape from a federal correctional institution. McCall’s attorney
has filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), in which he represents that there are no arguable issues
of merit in this appeal. Nevertheless, in his brief, counsel addressed
the possibility that the district court failed to comply with the dictates
of Fed. R. Crim. P. 11 and that the court may have improperly arrived
at McCall’s sentence. McCall filed a supplemental pro se brief essen-
tially repeating counsel’s sentencing argument.1 Finding no error, we
affirm.
The basic facts of this case are undisputed. McCall was incarcer-
ated at a federal prison camp in South Carolina. He left the facility
to retrieve a package his sister left for him in a wooded area outside
the prison. Law enforcement personnel were aware of the package
and had it under surveillance.2 When McCall saw the officers, he ran
into the woods. He was arrested the following day by local police
officers in Savannah, Georgia.
On appeal, counsel identifies no specific errors in the district
court’s Rule 11 hearing, and our review of the record reveals none.
The court conducted a thorough hearing, ensuring that McCall under-
stood the rights he would forego by pleading guilty, the elements of
1
Although not expressly doing so, McCall appears to suggest in his pro
se brief that trial counsel may have rendered ineffective assistance. We
review claims of ineffective assistance of counsel on direct appeal only
when the ineffectiveness conclusively appears on the record, and we find
none here. United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995).
2
According to the record, the package contained various items that
were considered contraband under prison regulations, but nothing illegal.
UNITED STATES v. MCCALL 3
the charge to which he was pleading guilty, the penalties he faced, the
effect of supervised release, and the impact of the Sentencing Guide-
lines. The court further ascertained that McCall’s plea was voluntary
and that a factual basis existed for his plea. See Fed. R. Crim. P. 11;
United States v. DeFusco, 949 F.2d 114, 116-17 (4th Cir. 1991). We
thus find that McCall’s substantial rights were adequately protected
by the district court’s proceedings. See DeFusco, 949 F.2d at 117.
Counsel identifies two potential errors in McCall’s sentence. First,
McCall argued at sentencing that he was entitled to a downward
adjustment in his base offense level because he was allegedly trying
to turn himself in to the United States Marshal’s Office in Savannah
when he was arrested approximately one block from their office.3 The
district court heard McCall’s testimony and counsel’s argument on
this issue and found McCall’s explanation to be incredible. We find
no error in this determination.
Second, McCall alleges that the district court engaged in improper
ex parte communications with the probation officer when the court
observed that McCall gave a false name to police when he was
arrested. It is well-established, however, that ex parte communication
between the court and the probation officer is allowed. United States
v. Johnson, 935 F.2d 47, 49-50 (4th Cir. 1991).
We have examined the entire record in this case in accordance with
the requirements of Anders and find no meritorious issues for appeal.
The 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. Coun-
sel’s motion must state that a copy thereof was served on the client.
We therefore affirm McCall’s conviction and sentence. We dis-
pense 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
3
See U.S. Sentencing Guidelines Manual § 2P1.1(b)(2) (2000).