United States v. Surratt ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5187
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RAYMOND ROGER SURRATT, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (CR-04-250)
Submitted: January 25, 2007 Decided: January 29, 2007
Before WIDENER and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James O. Rice, Jr., EVANS & RICE, P.L.L.C., Asheville, North
Carolina, for Appellant. Kimlani Murray Ford, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raymond Roger Surratt, Jr., pled guilty to one count of
conspiracy to possess with the intent to distribute five kilograms
or more of cocaine and fifty grams or more of cocaine base, in
violation of 21 U.S.C. § 846 (2000). The district court sentenced
Surratt to life imprisonment, ten years of supervised release, and
ordered payment of a $100 statutory assessment.1 Surratt’s counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), stating that there are no meritorious grounds for appeal,
but questioning whether the sentence imposed was reasonable.2
Surratt has filed a pro se supplemental brief arguing that his plea
was not voluntary and his attorney was ineffective.
1
The Government filed a Notice of Intention to Seek Enhanced
Penalties pursuant to 21 U.S.C. §§ 841(b)(1)(A), 851 (West 1999 &
Supp. 2006), setting forth three prior felony drug convictions on
which it relied to support an enhanced penalty. Surratt stipulated
in his plea agreement that he was responsible for a drug weight of
more than fifty grams of cocaine base. The probation officer
calculated an advisory sentencing guideline range of 188 to 235
months’ imprisonment founded on an offense level of 31 and a
criminal history category of VI, but noted that life is the
statutory mandatory minimum term of imprisonment pursuant to U.S.
Sentencing Guidelines Manual, § 5G1.1(b) (2004), for violation of
21 U.S.C. §§ 841(b)(1)(A), 851.
2
The plea agreement contained a provision in which Surratt
agreed to waive his right to contest his conviction and sentence
either on appeal or in a 28 U.S.C. § 2255 (2000) motion, except for
claims of ineffective assistance of counsel, prosecutorial
misconduct, and sentencing claims not asserted or evident here.
However, the Government has not asserted that the waiver provision
precludes review of Surratt’s conviction or sentence on appeal.
Thus, we decline to enforce the appellate waiver. See United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005) (citing United
States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000)).
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By counsel, Surratt asserts that because at one point in
the sentencing hearing the district court stated its agreement with
the Government when the Government erroneously stated that
Surratt’s calculated advisory guideline range notwithstanding the
statutory mandatory minimum, was 360 months to life, rather than
188 to 235 months, his sentence was unreasonable. We find the
district court’s misstatement to be harmless error, at most, given
the proper application and imposition of the statutory mandatory
minimum sentence of life imprisonment. After careful consideration
of the facts and evidence, the district court made all the factual
findings appropriate for the sentencing determination, and
considered the advisory sentencing range along with the other
factors described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2005), prior to imposing the properly applicable statutory
mandatory minimum sentence. Given these facts, we find Surratt’s
sentence to be reasonable.
Surratt did not move in the district court to withdraw
his guilty plea, therefore his challenge to the adequacy of his
plea and the Fed. R. Crim. P. Rule 11 hearing is reviewed for plain
error. See United States v. Martinez, 277 F.3d 517, 525 (4th Cir.
2002). Surratt is bound by the statements he made at the plea
colloquy, and there is no evidence that his plea was unknowing or
involuntary. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
We have carefully reviewed the transcript of the Rule 11 hearing
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and find no plain error in the district court’s acceptance of
Surratt’s guilty plea. See United States v. DeFusco, 949 F.2d 114,
119-20 (4th Cir. 1991).
Finally, Surratt’s claim of ineffective assistance of
counsel must be brought in a collateral proceeding under 28 U.S.C.
§ 2255 (2000), unless it conclusively appears from the face of the
record that his counsel was ineffective. United States v. DeFusco,
949 F.2d 114, 120-21 (4th Cir. 1991). Because the record does not
conclusively establish ineffective assistance of counsel, we
decline to consider this claim on direct appeal.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Surratt’s conviction and sentence. We
deny counsel’s motion to withdraw from representation at this
juncture. 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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