United States v. Burton , 387 F. App'x 390 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4123
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRAYONE MAURICE BURTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:07-cr-00773-JFA-1)
Submitted: June 29, 2010 Decided: July 9, 2010
Before WILKINSON and KEENAN, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Eric Hardy Imperial, THE LAW OFFICES OF ERIC H. IMPERIAL,
Washington, D.C., for Appellant. John David Rowell, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Trayone Maurice Burton appeals his conviction and 360
month sentence for conspiracy to possess with intent to
distribute and to distribute five kilograms or more of powder
cocaine and 1,000 kilograms or more of marijuana, in violation
of 21 U.S.C. §§ 841, 846 (2006) (Count 1); aiding and abetting
in the possession with intent to distribute marijuana, in
violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 (2006) (Count 2);
and being a felon in possession of firearms, in violation of 18
U.S.C. §§ 922, 924 (2006) (Count 4). Appellate counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 739
(1967), questioning whether Burton’s first attorney was
ineffective and whether Burton’s sentence was substantively
reasonable, but determining there are no meritorious issues on
appeal. Additionally, Burton’s counsel indicated that Burton
wished to raise three issues on appeal: that the district court
erred in calculating the drug weight for which he was
responsible, rather than the allowing it to be calculated by a
jury; the jury should have received an instruction under
Pinkerton v. United States, 328 U.S. 640 (1946); and the judge
should have granted Burton’s motion for a mistrial, based on a
witness’s reference to Burton’s prior cooperation with the
Government. The Government has elected not to file a brief. We
affirm.
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Burton’s attorney first contends that Burton’s
original attorney “failed to represent Mr. Burton in any
meaningful manner.” In particular, Burton’s counsel alleges
that Burton’s former attorney allowed the Government to
interview Burton on numerous occasions outside of counsel’s
presence, and Burton contended during the trial that his former
attorney instructed him to withhold information from the
Government.
Claims of ineffective assistance of counsel are not
cognizable on direct appeal unless the record conclusively
establishes ineffective assistance. United States v. James, 337
F.3d 387, 391 (4th Cir. 2003); United States v. Richardson, 195
F.3d 192, 198 (4th Cir. 1999). To allow for adequate
development of the record, generally claims of ineffective
assistance should be brought in a 28 U.S.C.A. § 2255 (West 2006
& Supp. 2010) motion. United States v. King, 119 F.3d 290, 295
(4th Cir. 1997). After reviewing the record, we find that it
does not conclusively establish ineffective assistance.
Therefore, Burton’s claims of ineffective assistance are not
cognizable on direct appeal.
Burton’s counsel next contends that Burton’s sentence
was unreasonable, as Burton received insufficient credit for
both his substantial assistance to the Government and his
acceptance of responsibility. “Regardless of whether the
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sentence imposed is inside or outside the [g]uidelines range,
the appellate court must review the sentence under an abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 51
(2007). Appellate courts are charged with reviewing sentences
for both procedural and substantive reasonableness. Id.
In determining procedural reasonableness, we first
assess whether the district court properly calculated the
defendant’s advisory guidelines range. Gall, 552 U.S. at 49-50.
We must then determine whether the district court failed to
consider the 18 U.S.C. § 3553(a) (2006) factors and any
arguments presented by the parties, treated the guidelines as
mandatory, selected a sentence based on “clearly erroneous
facts,” or failed to sufficiently explain the selected sentence.
Id. at 51; United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007). Finally, we review the substantive reasonableness of the
sentence, “taking into account the ‘totality of the
circumstances, including the extent of any variance from the
[g]uidelines range.’” Pauley, 511 F.3d at 473 (quoting Gall,
552 U.S. at 51).
We afford sentences that fall within the properly
calculated guidelines range a presumption of reasonableness.
See Gall, 552 U.S. at 51. Such a presumption can be rebutted
only by showing “that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
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445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks and
citation omitted). After reviewing the record, we find that
Burton’s sentence is both procedurally and substantively
reasonable.
Finally, Burton’s counsel raises three additional
issues in the Anders brief at Burton’s instruction. First,
Burton avers that the district court erred in calculating the
drug weight attributable to Burton, rather than allowing the
weight to be calculated by the jury. We find this issue to be
without merit.
Next, Burton contends that the jury should have been
instructed that it needed to make a finding as to the drug
quantity specifically applicable to him in accordance with
Pinkerton v. United States, 328 U.S. 640 (1946). However, the
principles outlined in Pinkerton are only applicable “when a
conspirator is charged with a substantive offense arising from
the actions of a coconspirator, not when a conspirator is
charged with conspiracy.” United States v. Collins, 415 F.3d
304, 313 (4th Cir. 2005). Because Burton was charged with
conspiracy, Pinkerton has no bearing on Burton’s conviction, and
this issue is without merit.
Finally, Burton contends that the district court erred
in denying his motion for a mistrial. We review the denial of a
motion for a mistrial for abuse of discretion. See United
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States v. Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997). “In
order for the trial court’s ruling to constitute such an abuse
of discretion, the defendant must show prejudice; no prejudice
exists, however if the jury could make individual guilt
determinations by following the court’s cautionary
instructions.” United States v. Dorsey, 45 F.3d 809, 817 (4th
Cir. 1995). After reviewing the record, we find that the
district court did not abuse its discretion in denying Burton’s
motion for a mistrial. See United States v. Vogt, 910 F.2d
1184, 1193 (4th Cir. 1990) (finding that witness’s impermissible
testimony was incidental and not repeatedly referenced by
witness or prosecution, and therefore did not warrant mistrial).
We have reviewed the record in accordance with Anders
and found no meritorious issues on appeal. Accordingly, we
affirm the judgment of the district court. This court requires
that counsel inform Burton in writing of his right to petition
the Supreme Court of the United States for further review. If
Burton 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
the client. We dispense with oral argument because the facts
and legal contentions are adequately expressed in the materials
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before the court, and argument would not aid the decisional
process.
AFFIRMED
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