United States v. King , 263 F. App'x 332 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4449
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SILAS THOMAS KING,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Lacy H. Thornburg,
District Judge. (3:01-cr-00210-3; 3:01-cr-00211-1)
Submitted: May 11, 2007 Decided: January 30, 2008
Before TRAXLER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Scott Gsell, LAW OFFICE OF SCOTT GSELL, Charlotte, North Carolina,
for Appellant. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina, Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Silas Thomas King appeals his 1145-month prison sentence
imposed upon remand for resentencing pursuant to United States v.
Booker, 543 U.S. 220 (2005). We previously affirmed King’s
convictions for several bank robberies and related crimes. See
United States v. King, 161 F. App’x 296 (4th Cir. 2006)
(unpublished) (affirming convictions and remanding for resentencing
in light of Booker). We now affirm his sentence.
Counsel for King has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he states there are no
meritorious issues for appeal but presents for our review the issue
whether the district court erred in not grouping, pursuant to U.S.
Sentencing Guidelines Manual § 3D1.2(b), bank robbery counts
against the same victim. King reiterates this claim in his pro se
supplemental brief. We have reviewed the record and conclude the
district court did not err because grouping was inappropriate in
King’s case. See U.S.S.G. § 3D1.2, comment. (n.4). We further
conclude King’s sentence, which was imposed in accordance with a
properly-calculated guidelines range and 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2006), is reasonable.
King raises several additional issues in his supplemental
brief. To the extent he raises issues concerning his conviction,
we conclude consideration of them is precluded by the mandate rule,
which “forecloses relitigation of issues expressly or impliedly
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decided by the appellate court,” as well as “issues decided by the
district court but foregone on appeal.” United States v. Bell, 5
F.3d 64, 66 (4th Cir. 1993).
King also raises a claim of ineffective assistance of
counsel. Unless it conclusively appears from the face of the
record that counsel was ineffective--and it does not here--claims
of ineffective assistance of counsel must be brought in a
collateral proceeding under 28 U.S.C. § 2255 (2000). United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).
Finally, in light of United States v. Muhammad, 478 F.3d
247 (4th Cir. 2007) (holding district court commits plain error if
it does not afford defendant opportunity to allocute at
resentencing hearing after Booker), we directed the parties to
submit supplemental briefs addressing whether King could
demonstrate prejudice resulting from the district court’s decision
not to permit him to allocute at resentencing. No per se rule of
reversal results from failing to allow the defendant to allocute,
see Muhammad, 478 F.3d at 249, and we will not vacate a sentence
based solely upon the Government’s concession of error. See United
States v. Rodriguez, 433 F.3d 411, 414-15 n.6 (4th Cir. 2006).
For us to notice the plain error conceded by the
Government, King must demonstrate “the possibility remains that an
exercise of the right of allocution could have led to a sentence
less than that received.” Muhammad, 478 F.3d at 249 (quoting
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United States v. Cole, 27 F.3d 996, 999 (4th Cir. 1994). After
careful review of the relevant materials before the court,
including the transcript of the resentencing hearing, we conclude
King fails to meet this standard.
At resentencing, the district court struck all but one
sentencing enhancement, thereby reducing King’s sentence from a
total of 1320 months’ imprisonment to a total of 1145 months’
imprisonment. Because a sentence of this magnitude is tantamount
to a life sentence, any further sentencing reduction would have to
be extraordinarily generous to provide the possibility that King
could outlive it. Militating against the possibility that the
district court would grant such a reduction if we remanded to
accord King the right to allocute is the court’s observation at
resentencing that King’s offenses were “about as inhumane and
cruel, other than the actual taking of a human life, in the way
these robberies were perpetrated, and there were a number of them.”
Further, in a pro se brief filed in this court, King continues to
proclaim his innocence. We find no possibility remains the
district court would have imposed meaningful additional sentence
reductions without King acknowledging and expressing regret for his
wrongdoing. Accordingly, under the particular facts presented, we
conclude King fails to demonstrate prejudice from the district
court’s plain error at resentencing.
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In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm King’s convictions and sentence. This court
requires that counsel inform King, in writing, of the right to
petition the Supreme Court of the United States for further review.
If King 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 King. 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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