United States v. Ellis ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4943
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMMOY ELLIS, a/k/a Tim, a/k/a James Ben Ross,
a/k/a Olpbeck Omar Davis,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:04-cr-00131-CMC-2)
Submitted: September 28, 2007 Decided: November 1, 2007
Before MICHAEL and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mario A. Pacella, STROM LAW FIRM, LLC, Columbia, South Carolina,
for Appellant. Leesa Washington, OFFICE OF THE UNITED STATES
ATTORNEY, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timmoy Ellis appeals his conviction and sentence for
conspiracy to possess with intent to distribute 500 grams or more
of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),
and 846 (2000). Ellis’ attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that, in his
opinion, there are no meritorious issues for appeal. Although
concluding that such allegations lacked merit, counsel claims on
appeal that the district court erred in enhancing Ellis’ base
offense level pursuant to U.S. Sentencing Guidelines Manual
§ 2D1.1. Ellis filed a supplemental pro se brief raising three
issues: (1) the district court erred in denying him an evidentiary
hearing; (2) his plea agreement was invalid; and (3) he was
improperly sentenced. Finding no reversible error, we affirm.
Ellis asserts the district court erred in denying him an
evidentiary hearing on his 28 U.S.C. § 2255 (2000) motion. This
issue is not properly before the court in this criminal appeal, and
we decline to consider it for that reason. In any event, we note
that Ellis received the relief he requested in his § 2255
proceeding. Thus, Ellis can claim no prejudice on account of the
disposition of his motion without an evidentiary hearing.
Ellis next claims his plea agreement was illegally
induced with an oral promise of a five-year sentence. Because
Ellis did not move in the district court to withdraw his guilty
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plea, any error committed during the Rule 11 hearing is reviewed
for plain error. United States v. Martinez, 277 F.3d 517, 526 (4th
Cir. 2002). A defendant’s statements at a guilty plea hearing are
presumed to be true. See Blackledge v. Allison, 431 U.S. 63, 73-74
(1977). Unsupported subsequent allegations are insufficient to
overcome representations at the hearing. Id. at 74; see also
United States v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991)
(stating 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”); Via v. Superintendent, Powhatan Corr.
Ctr., 643 F.2d 167, 171 (4th Cir. 1981) (holding statements made at
plea hearing that facially demonstrate plea’s validity conclusive
absent compelling reason why they should not be, such as
ineffective assistance of counsel).
At Ellis’ plea hearing, he testified he read and
discussed the plea agreement with counsel. When asked by the
court, Ellis responded no one had made promises about his sentence
other than what was in the plea agreement. He also indicated his
understanding when told by the court that the probation officer may
recommend another sentence after the presentence investigation and
that any departures could not be appealed. We therefore find his
guilty plea was knowing and voluntary.
Finally, Ellis contends his sentence was improper. He
specifically objects to a two-level dangerous weapon enhancement
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and claims he was not given the opportunity to review the
presentence report prior to sentencing. Because these claims were
not asserted in the district court, we review for plain error.
We conclude that Ellis’ challenges to his sentence are belied
by the record. First, Ellis testified at his rearraignment that he
had read and fully understood the plea agreement, which explicitly
provided that other conduct in which he had engaged, including the
commission of other, similar criminal offenses, could be considered
by the district court as relevant conduct for sentencing purposes.
Second, Ellis unambiguously testified at the sentencing hearing
that he read the presentence report and had no objections to its
contents. We therefore find no sentencing error.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Ellis’ 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 in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client.
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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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