United States v. Brown , 292 F. App'x 250 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4662
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES RODERCK BROWN, a/k/a JB,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-04-87)
Submitted: August 29, 2008 Decided: September 10, 2008
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jane Moran, JANE MORAN LAW OFFICE, Williamson, West Virginia, for
Appellant. Sharon L. Potter, United States Attorney, David E.
Godwin, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Roderck Brown appeals from his conviction after
pleading guilty to maintaining a drug involved premises in
violation of 21 U.S.C.A. § 856(a)(1), (b) (West 2000 & Supp. 2008).
On appeal, Brown argues that he received ineffective assistance of
trial counsel during his guilty plea and sentencing proceedings.
He also contends that the lengthy delay on appeal due to multiple
substitutions of appointed counsel resulted in a violation of his
due process rights. Finding no error, we affirm.
Brown alleges that trial counsel was ineffective because
he did not zealously investigate defenses to the charges; did not
throughly cross-examine the Government witness who testified to
establish the factual basis for the plea; did not argue for a
sentence of 180 months, the low end of the range specified in the
plea agreement; and did not contest the quantity of drugs
attributed or a firearm enhancement. Unless an attorney’s
ineffectiveness is apparent on the face of the record, ineffective
assistance claims are not generally addressed on direct appeal.
United States v. James, 337 F.3d 387, 391 (4th Cir. 2003); United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (providing
standard and noting that ineffective assistance of counsel claims
generally should be raised by motion under 28 U.S.C. § 2255(2000)).
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To succeed on a claim of ineffective assistance, Brown
must show that: (1) counsel’s performance fell below an objective
standard of reasonableness; and (2) counsel’s deficient performance
was prejudicial. Strickland v. Washington, 466 U.S. 668, 687-88
(1984). Under the first prong of Strickland, a defendant must
demonstrate that counsel’s performance “fell below an objective
standard of reasonableness” under prevailing professional norms.
Id. at 688. To satisfy the second prong of Strickland, a defendant
must show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id. However, to satisfy Strickland’s second prong in the guilty
plea context, a petitioner must show a reasonable probability that,
but for counsel’s unprofessional errors, he would not have pled
guilty and would have insisted on going to trial.
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Brown does not contend on appeal that, but for trial
counsel’s alleged lack of a defense against the charge, he would
not have pleaded guilty. At no time did Brown attempt to withdraw
his plea, and he, in fact, affirmed at the plea hearing that he was
satisfied with the services of his attorney. The Government had
evidence of three controlled drug buys with recordings of the phone
calls setting up the buys. The cocaine base received during the
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buys was sent to and analyzed by a laboratory. In addition, the
Government contended that nine persons who were involved in the
drug activity were available to testify. Brown’s co-defendant had
also pleaded guilty and agreed to testify against Brown regarding
the charges.
The remaining two ineffective assistance of trial counsel
claims involve counsel’s representation at sentencing. Brown
claims that counsel should have filed objections to the presentence
report and should not have agreed to a sentencing range of 210 to
240 months instead of 180 months as the lower range. He also
claims that counsel did not contest evidence of drug amount and the
gun enhancement. Brown affirmed that the 210 to 240 month
Guidelines range was properly calculated at sentencing. Further,
the gun enhancement was applicable because several witnesses stated
that Brown often carried a firearm. The enhancement was not based
on the presence of a firearm at the time of arrest. While a
district court retains the discretion to apply a downward variance
and therefore a 180-month sentence may have been a possibility, the
Guidelines range was properly calculated, and the court considered
the 18 U.S.C.A. § 3553(a) (West Supp. 2008) factors in crafting the
sentence. Therefore, there appears to be no ineffective assistance
in failing to challenge the Guidelines range calculation. In light
of these and other facts, we conclude that ineffective assistance
of trial counsel is not apparent on the face of the record and
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therefore will not be addressed and is best adjudicated in a 28
U.S.C. § 2255 (2000) motion.
Next, Brown argues that the two-year and nine-month delay
of this appeal resulted in a violation of his due process rights.
Brown states that, because current appellate counsel could not
recreate the entire case file of trial counsel, he was prejudiced.
He also states he suffered anxiety because he was effectively
without representation to appeal his 240-month sentence.
This court has recognized that an “undue delay in
processing an appeal may rise to the level of a due process
violation.” United States v. Johnson, 732 F.2d 379, 381 (4th Cir.
1984). In determining whether such a delay results in the denial
of a speedy appeal, we adopted the four-factor speedy-trial test of
Barker v. Wingo, 407 U.S. 514, 530 (1972). Johnson, 732 F.2d at
381-82. The four factors are: (1) the length of the delay; (2) the
reason for the delay; (3) the defendant’s assertion of his speedy
appeal right; and (4) prejudice to the defendant. Johnson, 732
F.2d at 381-82 (citing Barker, 407 U.S. at 530). In Johnson, we
held that the two-year delay in that case was “in the range of
magnitude of delay as a result of which courts have indicated that
due process may have been denied.” 732 F.2d at 382.
Here, the two-year and nine-month delay alleged in this
case would be sufficient to trigger the balancing test. See
Smith v. Kansas, 356 F.2d 654, 657 (10th Cir. 1966) (recognizing
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constitutional implications of one-year delay in appeal from
post-conviction proceeding). The reason for the delay is entirely
due to the need for substitute appellate counsel. Brown timely
asserted his right to appeal. Therefore, the first three factors
of the test weigh in Brown’s favor.
Brown, however, still needs to demonstrate that he has
suffered prejudice from the delay. Brown’s brief confuses
prejudice related to the ineffective assistance of trial claims,
which are unrelated to the delay, and the prejudice related to
appellate delay. Brown has now presented his claims, and they are
without merit; therefore, his substantial rights have not been
violated. Anxiety alone over case status is not sufficient to
find that there was prejudice affecting Brown’s substantial rights.
We therefore affirm the judgment. 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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