United States v. Darrell Banks ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4804
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRELL EUGENE BANKS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00052-MR-1)
Submitted: July 19, 2011 Decided: August 9, 2011
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles Y. Sipe, GOODMAN, ALLEN, & FILETTI, PLLC,
Charlottesville, Virginia, for Appellant. Anne M. Tompkins,
United States Attorney, Richard Lee Edwards, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darrell Eugene Banks appeals his conviction and 108-
month sentence for three counts of possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1) (2006) and
one count of possession of an unregistered firearm in violation
of 26 U.S.C. §§ 5861(d), 5845 (2006). For the reasons that
follow, we affirm.
Banks, who was suspected of robbing a bank in North
Carolina in 2008, was indicted on three charges related to that
bank robbery, in addition to the aforementioned firearms
charges. He agreed to plead guilty to the firearms charges in
exchange for the Government’s agreement to move to dismiss the
bank robbery charges. His plea agreement contained a
stipulation as to the offense level that Banks would receive for
the purposes of sentencing. The plea agreement set forth a base
offense level of twenty pursuant to U.S. Sentencing Guidelines
Manual § 2K2.1(a)(4)(B) (2009); a two-level enhancement pursuant
to USSG § 2K2.1(b)(1)(A) because Banks possessed six firearms;
and a four-level enhancement pursuant to USSG § 2K2.1(b)(6)
because Banks possessed a firearm in connection with another
felony offense, i.e., the bank robbery. The resulting offense
level stipulated to by the parties was therefore twenty-six.
Although submitting to the § 2K2.1(b)(6) enhancement, Banks
2
chose to remain silent as to his alleged involvement in the bank
robbery.
The plea agreement further stated that Banks
understood that the district court had not yet determined his
sentence, and that any estimate from any source, including his
defense attorney, was a prediction rather than a promise, and
that the district court retained the discretion to impose a
sentence up to the statutory maximum. The agreement also
provides that the Government “will inform the court and the
probation office of all facts pertinent to the sentencing
process, including all relevant information concerning the
offenses committed[.]” Finally, the parties agreed that an
appropriate sentence would be one at the top of Banks’s advisory
Guidelines range.
A magistrate judge conducted a colloquy pursuant to
Fed. R. Crim. P. 11, and concluded that Banks’s plea was
knowing, voluntary, and supported by an adequate factual basis.
Prior to sentencing, the Probation Office issued a presentence
investigation report (“PSR”). The PSR calculated Banks’s
adjusted offense level at twenty-nine by noting that because
Banks was subject to the § 2K2.1 enhancement for use or
possession of a firearm in connection with a bank robbery, the
cross-reference found at § 2K2.1(c)(1) would apply. Because
Banks’s offense level for the bank robbery was greater than the
3
offense level found in Chapter 2 of the Guidelines, the greater
offense level (twenty-nine) applied pursuant to USSG § 2X1.1.
Banks objected on the ground that the plea agreement
contained a stipulation to a lower offense level. The
Government, conceding that it erred in calculating the estimated
offense level in the plea agreement, stated that it stood by the
recommendation made in the agreement.
At sentencing, the district court, over Banks’s
objection, asked the Government to proffer evidence supporting
the § 2K2.1(b)(6) enhancement. The court found as a matter of
law that the cross-reference applied, and calculated Banks’s
offense level accordingly. After applying enhancements for
obstruction of justice and adjustments for acceptance of
responsibility, Banks’s resulting total offense level was
twenty-eight. With a criminal history category of II, his
advisory Guidelines range was 87 to 108 months. The district
court imposed a 108-month sentence and this timely appeal
followed.
On appeal, Banks raises two claims of error: that
trial counsel was ineffective for failing to advise Banks of the
possibility that he would be subject to the cross-reference; and
that the Government breached the plea agreement.
4
I. Ineffective Assistance of Counsel
Banks first argues that his trial counsel did not
appropriately consider the possibility of a § 2K2.1(c)(1) cross-
reference and that had he known of the possibility that he would
be sentenced under that cross-reference he would not have pled
guilty. Thus, he argues, counsel provided ineffective
assistance.
Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal. United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). Rather, to allow for adequate
development of the record, a defendant generally must bring his
claims in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion. Id.;
United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994).
However, ineffective assistance claims are cognizable on direct
appeal if the record conclusively establishes ineffective
assistance. United States v. Richardson, 195 F.3d 192, 198
(4th Cir. 1999); King, 119 F.3d at 295.
Here, the record does not conclusively establish
ineffective assistance of counsel. Banks’s claim that he would
have pled not guilty is belied by the record. At the start of
his sentencing hearing, after the PSR issued recommending
imposition of the cross-reference, Banks confirmed to the
5
district court that he still wished to plead guilty. Thus, this
claim is not cognizable on direct review.
II. Breach of Plea Agreement
Although Banks argued at sentencing that the
Government breached the plea agreement, he advances a new theory
in support of that claim on appeal. Accordingly, our review is
for plain error. “To establish plain error, [Banks] must show
that an error occurred, that the error was plain, and that the
error affected his substantial rights.” United States v.
Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Even if Banks
satisfies these requirements, “correction of the error remains
within [the court’s] discretion, which [the court] should not
exercise . . . unless the error seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation
omitted).
Plea agreements are grounded in contract law, and both
parties should receive the benefit of their bargain. United
States v. Dawson, 587 F.3d 640, 645 (4th Cir. 2009). The
government breaches a plea agreement when a promise it made to
induce the plea goes unfulfilled. See Santobello v. New York,
404 U.S. 257, 262 (1971). Because of “constitutional and
supervisory concerns,” the government is held to a greater
6
degree of responsibility than the defendant for imprecision or
ambiguities in plea agreements. United States v. Garcia, 956
F.2d 41, 44 (4th Cir. 1992). Where an agreement is ambiguous in
its terms, the terms must be construed against the government.
United States v. Harvey, 791 F.2d 294, 303 (4th Cir. 1986).
However, “[w]hile the government must be held to the promises it
made, it will not be bound to those it did not make.” United
States v. Fentress, 792 F.2d 461, 464 (4th Cir. 1986).
We conclude that the Government did not breach the
plea agreement. In the agreement, the Government stated that it
“will inform the court and the probation office of all facts
pertinent to the sentencing process, including all information
concerning the offenses committed[.]” Moreover, throughout the
proceedings, the attorney for the Government repeatedly stated
that it stood by the recommendations made in the plea agreement
concerning Banks’s advisory Guidelines range and offense level.
Finally, and perhaps most importantly, Banks
stipulated that he would be subject to the § 2K2.1(b)(6)
enhancement for using a firearm in conjunction with another
felony, i.e., the bank robbery. Although he continued to remain
silent with respect to the bank robbery charges, he nevertheless
agreed to submit to a sentencing enhancement pertaining to those
charges. The Government introduced evidence at sentencing
supporting imposition of that enhancement, as agreed upon by the
7
parties. The fact that the evidence also, as a matter of law,
supported application of the cross-reference is of no moment.
While it is regrettable that the parties mutually miscalculated
the Guidelines in drafting the plea agreement, the Government
continued to stand by the recommendation the agreement bound it
to make. On these facts, we conclude that the Government was
not in breach.
Accordingly, we affirm the judgment of the district
court. 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
8