United States v. Jeffrey Sparks ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4046
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFREY NATHAN SPARKS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:11-cr-00073-RLV-DSC-31)
Submitted: September 15, 2015 Decided: November 4, 2015
Before WILKINSON, KING, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert C. Carpenter, ADAMS, HENDON, CARSON, CROW & SAENGER,
P.A., Asheville, 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Unpublished opinions are not binding precedent in this circuit.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:
Jeffrey Nathan Sparks pled guilty to conspiracy to
distribute, possess with intent to distribute, and manufacture a
controlled substance in violation of 21 U.S.C. § 841(a)(1)
(2012). The court imposed a 63-month sentence. Sparks’ counsel
filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), stating that, in counsel’s view, there are no
meritorious issues for appeal, but questioning whether the
district court denied Sparks the opportunity to allocute prior
to imposing sentence and whether Sparks was denied the effective
assistance of trial counsel. Sparks was informed of his right
to file a pro se supplemental brief, but he has not done so.
For the reasons that follow, we affirm.
Based on Sparks’ stipulation as to the quantity of drugs
reasonably foreseeable to him and the evidence provided by law
enforcement agents, the district court determined that Sparks’
base offense level was 32. The court appropriately increased
Sparks’ offense level for possession of a firearm in furtherance
of the offense and substantial risk of harm to human life.
After reducing the offense level for acceptance of
responsibility, Sparks’ advisory Guidelines range was 168 to 210
months’ imprisonment. The court departed downward to level 25
and an advisory Guidelines range of 63 to 78 months, and
announced Sparks’ sentence as 63 months.
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Only after imposing sentence did the district court ask
Sparks if he wished to say anything with regard to his sentence.
Sparks responded, expressing his appreciation to the court and
apologizing for his bad decisions. On appeal, Sparks contends
that he was denied the opportunity to allocute prior to the
court’s imposition of sentence.
A defendant has a due process right to address the court
and provide a statement in mitigation of sentencing. Fed. R.
Crim. P. 32(i)(4)(A)(ii); Green v. United States, 365 U.S. 301,
304 (1961); Ashe v. North Carolina, 586 F.2d 334, 336 (4th Cir.
1978). Because he failed to object at sentencing, our review is
for plain error. United States v. Muhammad, 478 F.3d 247, 248-
49 (4th Cir. 2007). We find that the district court, by first
announcing Sparks’ sentence and then allowing Sparks the
opportunity to allocute, did not commit plain error. See United
States v. Engle, 676 F.3d 405, 425 (4th Cir. 2012) (“‘[W]hen a
judge announces a sentence before hearing an allocution, it is
fair to assume that such a sentence is tentative and that the
judge will consider the defendant’s statements before imposing a
final sentence.’”) (quoting United States v. Burgos–Andujar, 275
F.3d 23, 30 (1st Cir. 2001)), petition for cert. filed (June 12,
2015); see also United States v. Boose, 403 F.3d 1016 (8th Cir.
2005) (finding no denial of allocution when court announced
tentative sentence before allowing defendant to allocute).
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Additionally, in light of the district court’s significant
downward departure, Sparks cannot show that he was prejudiced by
not allocuting prior to the imposition of sentence. See United
States v. Lewis, 10 F.3d 1086, 1092 (4th Cir. 1993) (finding no
prejudice to defendant by the denial of the right to allocute
when there was no possibility of defendant receiving a lesser
sentence).
Sparks also contends that he was denied the effective
assistance of counsel with respect to his entry of a guilty
plea, counsel’s failure to object to and challenge sentencing
enhancements, and counsel’s incorrect advice as to whether
Sparks should testify at sentencing. We decline to reach
Sparks’ claims of ineffective assistance of counsel. Unless an
attorney’s ineffectiveness conclusively appears on the face of
the record, ineffective assistance claims are not generally
addressed on direct appeal. United States v. Benton, 523 F.3d
424, 435 (4th Cir. 2008). Instead, such claims should be raised
in a motion brought pursuant to 28 U.S.C. § 2255 (2012), in
order to permit sufficient development of the record. United
States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
Because there is no conclusive evidence of ineffective
assistance of counsel on the face of the record, we conclude
that these claims should be raised, if at all, in a § 2255
motion.
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Sparks’ conviction and sentence.
This court requires that counsel inform Sparks, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Sparks 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 Sparks. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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