United States v. Brandon Berry ( 2011 )

Case: 10-31023 Document: 00511612971 Page: 1 Date Filed: 09/26/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 26, 2011
No. 10-31023
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
BRANDON BERRY,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:09-CR-168-1
Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Brandon Berry appeals his guilty-plea conviction for possession with the
intent to distribute marijuana, possession of a firearm by a convicted felon, and
possession of a firearm in furtherance of a drug-trafficking crime.
Berry first contends: his conviction and sentence should be reversed
because the district court denied his requests for new counsel. Berry was
represented by a Federal Public Defender (FPD). He is represented on appeal by
retained counsel.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 10-31023 Document: 00511612971 Page: 2 Date Filed: 09/26/2011
No. 10-31023
Denial of a motion to substitute counsel is reviewed for an abuse of
discretion. E.g., United States v. Simpson, 645 F.3d 300, 307 (5th Cir. 2011).
The right to counsel guaranteed by the Sixth Amendment does not include the
right to counsel of defendant’s choice. United States v. Snyder, 707 F.2d 139, 145
(5th Cir. 1983), abrogated in part on other grounds by United States v. Sanchez-
Guerrero, 546 F.3d 328, 333 (5th Cir. 2008). Substitute counsel should be
appointed only for good cause. Simpson, 645 F.3d at 307.
The record does not support Berry’s assertion that the magistrate judge
failed to assess adequately his request for new counsel. Further, Berry has not
shown the district court abused its discretion by referring his subsequent
request, after pleading guilty, for new counsel to the FPD, because that office
responded to his request by offering him new counsel, and he consented. Berry
expressed no dissatisfaction with his new counsel at the sentencing hearing; nor
did he file anything with the court to that effect. Berry has failed to show the
district court abused its discretion in denying his requests for new counsel.
Berry next maintains it is not clear what sentence the district court
intended to impose on counts one and two of the superseding indictment.
Although Berry acknowledges that the court orally stated his sentence was 37
months’ imprisonment, and that the written judgment states the same, he notes:
when the court explained the sentence, it also stated the “guideline range as to
Counts 1 and 2 does not exceed 24 months”. He contends the court’s oral
pronouncements were ambiguous and they conflict with the written judgment.
The district court orally pronounced a sentence of 37 months as to counts
one and two. Thereafter, when explaining its chosen sentence, the court stated:
“I have considered the guideline range and find it to be appropriate in this case.
The guideline [sentencing] range [of 37 to 46 months] as to Counts 1 and 2 does
not exceed 24 months. The Defendant is sentenced at the bottom of the
guideline [sentencing] range.”
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Case: 10-31023 Document: 00511612971 Page: 3 Date Filed: 09/26/2011
No. 10-31023
District courts are required by statute to state the reasons for a sentence
in open court when the guideline sentencing range is greater than 24 months.
18 U.S.C. § 3553(c)(1). The district court was referring evidently to § 3553(c)(1)
when it made the statement about the sentencing range.
In any event, to the extent oral pronouncements are ambiguous, our court
may look to the written judgment to clarify the sentence. Schurmann v. United
States, 658 F.2d 389, 390-91 (5th Cir. 1981). The written judgment provided
that Berry “be imprisoned for a total term of 37 months as to counts 1 and 2, to
be served concurrently”. The written judgment confirms the court sentenced
Berry to 37 months on counts one and two.
Berry also maintains this matter should be remanded for an ineffective-
assistance-of-counsel hearing. The general rule in our circuit is that a claim of
?ineffective assistance of counsel cannot be resolved on direct appeal when the
claim has not been raised before the district court since no opportunity existed
to develop the record on the merits of the allegations”. United States v.
Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (citation and internal quotation
marks omitted). Contrary to Berry’s suggestion otherwise, the interests of
judicial economy would not be served by our determination of this matter at this
time. Moreover, the record is insufficiently developed to address Berry’s
ineffective-assistance claims on direct appeal. Finally, a 28 U.S.C. § 2255 motion
is the preferred method for raising an ineffective-assistance-of-counsel claim.
Massaro v. United States, 538 U.S. 500, 504-05 (2003).
AFFIRMED.
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