United States v. Hunter ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4523
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHRISTOPHER ALLEN HUNTER,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:06-cr-00251-LHT-DLH-2)
Submitted: November 24, 2008 Decided: December 19, 2008
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sue Genrich Berry, BOWEN AND BERRY, PLLC, Wilmington, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Allen Hunter entered a straight-up guilty
plea to conspiracy to possess with intent to distribute cocaine
base, in violation of 21 U.S.C. §§ 841, 846 (2006), and was
sentenced to 200 months in prison. Counsel for Hunter has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
alleging that she has found no meritorious issues for appeal but
asserting that Hunter did not receive effective assistance of
counsel from his original trial counsel because he was not
informed of a proposed plea agreement. Although Hunter was
provided notice of his right to file a supplemental pro se
brief, he has not done so, and the Government has declined to
file a responsive brief. Finding no error, we affirm the
district court’s judgment.
In accordance with Anders, we have thoroughly reviewed
the record and have found no meritorious issues for appeal. We
find that the district court complied with the requirements of
Fed. R. Crim. P. 11 when it accepted Hunter’s guilty plea,
ensuring that his plea was knowing and voluntary, that he
understood the rights he was giving up by pleading guilty and
the sentence he faced, and that he committed the offense to
which he was pleading guilty. See Fed. R. Crim. P. 11(b).
We also conclude that Hunter’s 200-month sentence is
reasonable. See United States v. Hughes, 401 F.3d 540, 546-47
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(4th Cir. 2005). We find that the district court correctly
calculated Hunter’s Guidelines range and that it was reasonable
for the district court to depart downward from that range. See
United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006)
(holding that to determine an appropriate sentence, the district
court should first calculate the appropriate Guidelines range
and then determine “whether a departure is appropriate based on
the Guidelines Manual or relevant case law”); United States
v. Davenport, 445 F.3d 366, 370-71 (4th Cir. 2006) (“When we
review a sentence outside the advisory guideline range--whether
as a product of a departure or a variance--we consider both
whether the district court acted reasonably with respect to its
decision to impose such a sentence and with respect to the
extent of the divergence from the guideline range.”). Because
the district court considered the 18 U.S.C. § 3553(a) (2006)
factors and sentenced Hunter to a sentence in the middle of the
departed Guidelines range, we find Hunter’s sentence to be
reasonable.
Although Hunter contends he was denied effective
assistance of counsel because he was never presented with a
proposed plea agreement that would have resulted in a lower
sentencing guidelines range, see United States v. Blaylock, 20
F.3d 1458, 1465-66 (9th Cir. 1994) (failing to inform defendant
of plea offer was unreasonable assistance), because it does not
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“conclusively appear on the record” that Hunter was denied
effective assistance, this claim should be asserted by Hunter in
a post-conviction motion under 28 U.S.C. § 2255 (2000) rather
than on direct appeal. See United States v. Richardson, 195
F.3d 192, 198 (4th Cir. 1999) (“A claim of ineffective
assistance of counsel should be raised by a habeas corpus motion
under 28 U.S.C. § 2255 in the district court and not on direct
appeal.”) (internal quotation marks, brackets and citation
omitted). During the plea colloquy, Hunter informed the
district court that he discussed possible defenses with trial
counsel and that he was entirely satisfied with his attorney’s
services. These declarations “carry a strong presumption of
verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977); see
United States v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991)
(holding that defendant’s statement at Rule 11 hearing that he
was neither coerced nor threatened was “strong evidence of the
voluntariness of his plea”).
Moreover, although the Government indicated at
sentencing that a plea agreement was sent to trial counsel prior
to the Rule 11 hearing, a proposed plea agreement was never
mentioned by the Government at the Rule 11 hearing, the
Government could not produce a copy of the proposed plea
agreement at sentencing, and it is unclear whether trial counsel
ever received a plea agreement--assuming one existed--from the
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Government. Without evidence from trial counsel regarding his
failure to present the proposed plea agreement to Hunter,
consideration of this issue is premature. See DeFusco, 949 F.2d
at 120-21 (“[I]t would be unfair to adjudicate [an ineffective
assistance claim] without any statement from counsel on the
record.”).
Accordingly, we affirm the district court’s judgment.
This court requires that counsel inform Hunter in writing of his
right to petition the Supreme Court of the United States for
further review. If Hunter requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Hunter. 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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