United States v. James Washington

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4809
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES T. WASHINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Senior
District Judge. (2:12-cr-00187-1)
Submitted: August 2, 2016 Decided: August 19, 2016
Before TRAXLER, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John A. Carr, JOHN A. CARR ATTORNEY AT LAW, PLLC, Charleston, West
Virginia, for Appellant. Monica D. Coleman, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James T. Washington pled guilty pursuant to a written plea
agreement to one count of distribution of cocaine, in violation of
21 U.S.C. § 841(a)(1) (2012). The district court imposed a within-
Guidelines sentence of 216 months. In accordance with Anders v.
California, 386 U.S. 738 (1967), Washington’s counsel has filed a
brief certifying that there are no meritorious issues for appeal,
but questioning whether (1) it was incumbent on the Government to
file the 21 U.S.C. § 851 (2012) information before Washington
signed the plea agreement; (2) the district court plainly erred by
not inquiring about the basis for the § 851 information before
imposing Washington’s sentence; and (3) Washington’s counsel
provided ineffective assistance of counsel. Washington has filed
a pro se supplemental brief expanding on the claims identified in
the Anders brief and asserting that his plea agreement was
involuntary because it was coerced by the threat of a sentencing
enhancement under § 851. We affirm Washington’s conviction and
sentence.
Washington has two claims concerning the § 851 information.
Because Washington did not object on these grounds below, we review
these claims for plain error. See United States v. Sanya, 774
F.3d 812, 815 (4th Cir. 2014). To establish plain error, an
appellant must show: (1) error; (2) that was plain; and (3) that
2
affected his substantial rights. Henderson v. United States, 133
S. Ct. 1121, 1126-27 (2013).
First, Washington suggests that the § 851 information may
have been untimely filed. An information seeking a statutory
sentence enhancement based on a prior conviction must be filed
before entry of a guilty plea. 21 U.S.C. § 851(a)(1). Here,
because the Government filed the § 851 information before
Washington appeared in court to enter his plea, the Government
complied with this requirement and no error occurred.
Next, counsel suggests that the district court failed to
properly inquire into the basis for the § 851 information. Section
851 requires a district court, before imposing sentence, to inquire
whether the defendant affirms or denies the prior conviction cited
in the § 851 information, and to inform defendant that any
challenge to the prior conviction must be made before sentencing.
Here, the district court did neither. Nonetheless, we conclude
that Washington has not met the demanding plain error standard,
because he cannot show that that the district court’s omission
affected his substantial rights. First, Washington acknowledged
his prior federal controlled substance offense during his
sentencing allocution, and on appeal offers no meritorious basis
to challenge the prior conviction cited in the information.
Accordingly, we conclude that both these § 851-based claims fail.
3
Turning to Washington’s ineffective assistance claim, “[i]t
is well established that a defendant may raise a claim of
ineffective assistance of counsel in the first instance on direct
appeal if and only if it conclusively appears from the record that
counsel did not provide effective assistance.” United States v.
Galloway, 749 F.3d 238, 241 (4th Cir. 2014) (alterations and
internal quotation marks omitted). Absent such a showing,
ineffective assistance 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). Here, the record does not
conclusively show that counsel provided ineffective assistance;
thus, the claim is properly raised, if at all, through a § 2255
motion rather than on direct appeal.
In accordance with Anders, we have reviewed the entire record
in this case and have found no meritorious issues for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Washington, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Washington 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 Washington.
4
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
5