United States v. Parham

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4342
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEROY PARHAM,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:07-cr-00121-RBS-JEB-1)
Submitted: September 29, 2009 Decided: October 28, 2009
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Cristin Traylor, MCGUIRE WOODS LLP, Richmond, Virginia, for
Appellant. D. Monique Broadnax, Special Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leroy Parham pleaded guilty to possession with intent
to distribute cocaine base, in violation of 21 U.S.C. § 841(a)
(2006). Parham was sentenced to ninety-six months of
imprisonment and now appeals. His attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), raising
three issues but stating that there are no meritorious issues
for appeal. Parham filed a pro se supplemental brief raising an
additional issue. * We affirm.
In the Anders brief, counsel questions whether the
district court erred in accepting Parham’s guilty plea as
knowing and voluntary. Because Parham did not move in the
district court to withdraw his guilty plea, any error in the
Fed. R. Crim. P. 11 hearing is reviewed for plain error. See
United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).
Furthermore, there is a strong presumption that a defendant’s
guilty plea is binding and voluntary if he has received an
adequate Fed. R. Crim. P. 11 hearing. United States v. Puckett,
61 F.3d 1092, 1099 (4th Cir. 1995); see Blackledge v. Allison,
431 U.S. 63, 74 (1977) (finding that statements made during a
plea hearing “carry a strong presumption of verity”). Our
*
We have considered the claim raised in Parham’s pro se
brief and conclude the claim lacks merit.
2
review of the record discloses that the district court fully
complied with Rule 11. We conclude, therefore, that the
district court did not err in accepting Parham’s guilty plea as
knowing and voluntary.
Counsel next questions whether Parham’s trial counsel
was ineffective. To prove a claim of ineffective assistance of
counsel, a defendant must show (1) “that counsel’s performance
was deficient,” and (2) “that the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S.
668, 687 (1984). With respect to the first prong, “the
defendant must show that counsel’s performance fell below an
objective standard of reasonableness.” Id. at 688. In
addition, “[j]udicial scrutiny of counsel’s performance must be
highly deferential.” Id. at 689. Under the second prong of the
test in the context of a conviction following a guilty plea, a
defendant can show prejudice only by demonstrating “a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
This court may address a claim of ineffective
assistance on direct appeal only if the lawyer’s ineffectiveness
conclusively appears on the record. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). We have
thoroughly reviewed the record and conclude that Parham has
3
failed to demonstrate that ineffective assistance conclusively
appears on the record and, therefore, we decline to address this
claim on direct appeal.
Finally, counsel questions whether the district court
erred in sentencing Parham. We review a sentence for
reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, ___, 128 S. Ct. 586, 597
(2007); see also United States v. Layton, 564 F.3d 330, 335 (4th
Cir. 2009), petition for cert. filed (U.S. July 24, 2009) (No.
09-5584). In so doing, we first examine the sentence for
“significant procedural error,” including “failing to calculate
(or improperly calculating) the [g]uidelines range, treating the
[g]uidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) [(2006)] factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence . . . .” Gall, 128 S. Ct. at 597. This court
then “‘consider[s] the substantive reasonableness of the
sentence imposed.’” United States v. Evans, 526 F.3d 155, 161
(4th Cir.) (quoting Gall, 128 S. Ct. at 597), cert. denied, 129
S. Ct. 476 (2008). “Substantive reasonableness review entails
taking into account the ‘totality of the circumstances,
including the extent of any variance from the [g]uidelines
range.’” United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007) (quoting Gall, 128 S. Ct. at 597). If the sentence is
4
within the guidelines range, we apply a presumption of
reasonableness. United States v. Allen, 491 F.3d 178, 193 (4th
Cir. 2007); see Rita v. United States, 551 U.S. 338, 346-56
(2007) (upholding presumption of reasonableness for
within-guidelines sentence).
We have thoroughly reviewed the record and find that
the sentence is both procedurally and substantively reasonable.
The district court properly calculated the advisory guidelines
range, considered the 18 U.S.C. § 3553(a) factors, and provided
a comprehensive explanation of its chosen sentence. See United
States v. Carter, 564 F.3d 325, 328-30 (4th Cir. 2009). In
addition, Parham has failed to rebut the presumption of
substantive reasonableness we accord to his within-guidelines
sentence.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. We therefore affirm the judgment and deny counsel’s
motion to withdraw. This court requires that counsel inform
Parham, in writing, of the right to petition the Supreme Court
of the United States for further review. If Parham 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 Parham. We
5
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
6