United States v. Scarbrough ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4406
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PATRICK ELLIOTT SCARBROUGH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (CR-02-807)
Submitted: February 24, 2006 Decided: March 27, 2006
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Reynolds Williams, WILLCOX, BUYCK & WILLIAMS, P.A., Florence, South
Carolina, for Appellant. Jonathan S. Gasser, United States
Attorney, Alfred W. 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Unpublished opinions are not binding precedent in this circuit.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:
Patrick Elliott Scarbrough pled guilty to conspiracy to
distribute and to possess with intent to distribute fifty grams or
more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846
(2000). He received a 144-month sentence. On appeal, his attorney
has filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), raising the issue of whether the court erred in assessing
two rather than one criminal history point at sentencing based on
a certain juvenile offense and whether counsel was ineffective in
this regard. Although advised of his right to do so, Scarbrough
has not filed a supplemental pro se brief.
On appeal, Scarbrough first argues that the district
court erred in assessing two points to his criminal history score
based on a 1998 juvenile conviction for which he received a 90-day
sentence but served only 31 days of confinement. See U.S.
Sentencing Guidelines Manual § 4A1.2(d) (2001) (directing that
three points be added if the juvenile was convicted as an adult and
sentenced to imprisonment exceeding thirteen months, two points if
the juvenile was sentenced to confinement of at least sixty days,
and one point for all other recent juvenile convictions). Because
Scarbrough withdrew his objection below, review is for plain error.
United States v. Olano, 507 U.S. 725 (1993). To meet the plain
error standard: (1) there must be an error; (2) the error must be
plain; and (3) the error must affect substantial rights. Id. at
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732-34. If the three elements of the plain error standard are met,
the court may exercise its discretion to notice error only if the
error seriously affects “the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 736 (citation
omitted). Assuming without deciding there was error, Scarbrough’s
substantial rights were not affected as his criminal history
category would remain the same without inclusion of the disputed
point.
To the extent Scarbrough argues that counsel was
ineffective for failing to object at sentencing on the above
ground, claims of ineffective assistance of counsel are generally
not cognizable on direct appeal. See United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). Rather, to allow for adequate
development of the record, a defendant must bring his claim in a
motion under 28 U.S.C. § 2255 (2000). See id.; United States v.
Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception exists when
the record conclusively establishes ineffective assistance. United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). We find
that ineffective assistance does not conclusively appear from the
record.
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.*
*
On August 17, 2005, a standard order was filed directing the
parties to file supplemental briefing. Instead of requesting
briefing in light of United States v. Booker, 543 U.S. 220 (2005),
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Accordingly, we affirm Scarbrough’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 in 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
materials before the court and argument would not aid the
decisional process.
AFFIRMED
the order erroneously requested briefing addressing the impact of
this court’s decision in United States v. Blick, 408 F.3d 162 (4th
Cir. 2005). Both parties have responded, noting that there was no
appellate waiver in Scarbrough’s case, and therefore Blick is
inapplicable. Although Scarbrough’s counsel has not raised a claim
under Booker, we have conducted an independent review under Anders
and found no Sixth Amendment violation or plain error in the
mandatory application of the guidelines under Booker.
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