United States v. Backus ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4340
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRANCE DEANDREW BACKUS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:08-cr-00128-MR-DLH-3)
Submitted: December 6, 2010 Decided: December 28, 2010
Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Samuel B. Winthrop, WINTHROP AND WINTHROP, Statesville, 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Unpublished opinions are not binding precedent in this circuit.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:
Terrance Deandrew Backus appeals the 262-month
sentence imposed following his guilty plea to conspiracy to
possess with intent to distribute cocaine base, in violation of
21 U.S.C. § 846 (2006). On appeal, counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there are no meritorious grounds for appeal but questioning
whether the district court should have granted, sua sponte, a
downward departure based on the significant overstatement of
Backus’s criminal history category and whether the sentence was
unreasonable because the district court failed to consider a
downward variance based on a one-to-one ratio of crack-to-powder
cocaine. Backus filed a pro se supplemental brief alleging
ineffective assistance of appellate counsel. Finding no
reversible error, we affirm.
Counsel first argues that Backus’s criminal history is
overstated and that the district court erred in failing to grant
a downward departure from criminal history category VI to
criminal history category V. The district court has the
discretion to depart downward one criminal history category for
a career offender “[i]f reliable information indicates that the
defendant’s criminal history category substantially over-
represents the seriousness of the defendant’s criminal history
or the likelihood that the defendant will commit other crimes.”
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U.S. Sentencing Guidelines Manual § 4A1.3(b)(1), (3)(A) (2008).
However, “[w]e lack the authority to review a sentencing court’s
denial of a downward departure unless the court failed to
understand its authority to do so.” United States v. Brewer,
520 F.3d 367, 371 (4th Cir. 2008). Upon review, we conclude
that the record does not reveal that the district court failed
to recognize its authority to depart. See United States v.
Draffin, 286 F.3d 606, 610 (D.C. Cir. 2002). Thus, Backus’s
claim is not reviewable on appeal.
Counsel also argues that Backus’s sentence was
unreasonable because the district court failed to consider a
downward variance based on a one-to-one crack-to-powder ratio.
Because Backus raises this argument for the first time on
appeal, we review for plain error. United States v. Branch, 537
F.3d 328, 343 (4th Cir. 2008). To demonstrate plain error, a
defendant must show that: (1) there was an error; (2) the error
was plain; and (3) the error affected his “substantial rights.”
United States v. Olano, 507 U.S. 725, 732 (1993).
Under the advisory Guidelines, “district courts are
entitled to reject and vary categorically from the crack-cocaine
Guidelines based on a policy disagreement with those
Guidelines.” Spears v. United States, ___ U.S. ___, 129 S. Ct.
840, 843-44 (2009). The district court is not required to apply
a one-to-one ratio; Spears merely permits a district court to
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substitute its own ratio if it determines the sentencing
disparity is unwarranted. Upon review, we conclude that the
district court did not err in failing to consider a downward
variance based on the crack-to-powder cocaine sentencing
disparity.
In the pro se supplemental brief, Backus argues that
appellate counsel was ineffective for failing to consult with
him prior to filing the Anders brief and for failing to pursue
certain “obvious” arguments. “A defendant can raise the claim
of ineffective assistance of counsel . . . on direct appeal if
and only if it conclusively appears from the record that his
counsel did not provide effective assistance . . . .” United
States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998). To prove
ineffective assistance the defendant must satisfy two
requirements: (1) “that counsel’s representation fell below an
objective standard of reasonableness”; and (2) “that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). We
conclude that the record does not conclusively demonstrate that
counsel was ineffective; thus, we decline to consider Backus’s
ineffective assistance claim on direct appeal.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
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We therefore affirm the district court’s judgment. This court
requires that counsel inform Backus, in writing, of his right to
petition the Supreme Court of the United States for further
review. If Backus requests that a petition be filed, but
counsel believes that such a petition would be frivolous,
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Backus. We dispense with oral argument because
the facts and legal conclusions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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