United States v. Banks

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5775
WILLIE JAMES BANKS, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Alexander Williams, Jr., District Judge.
(CR-94-44)
Submitted: August 12, 1997
Decided: September 12, 1997
Before HAMILTON and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Thomas G. Ross, ROSS & POWELL, Centreville, Maryland, for
Appellant. Lynne A. Battaglia, United States Attorney, Deborah A.
Johnston, Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Willie James Banks, Jr., pled guilty to two counts of being a felon
in possession of a firearm, 18 U.S.C.A. § 922(g)(1) (West Supp.
1997), and was sentenced to thirty-three months imprisonment. His
attorney has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), raising several issues but stating that in his view
there are no meritorious issues for appeal. Banks has filed a pro se
supplemental brief* in which he contests his conviction and sentence.
After a thorough review of the record, we affirm Banks' conviction
and sentence.
Banks purchased two shotguns in December 1994, on separate
occasions, each time falsely representing that he had not been previ-
ously convicted of a felony. He was indicted in February 1995 and
pled guilty in April. He made no objection to the presentence report,
which recommended offense level of 12, criminal history category VI
(16 criminal history points), and a guideline sentencing range of 30-
37 months.
In his plea agreement, Banks waived his right to appeal his sen-
tence as long as the offense level determined by the district court was
not greater than 12. During the Fed. R. Crim. P. 11 plea colloquy, the
district court told Banks that once he pled guilty his appeal rights
would be "somewhat limited." However, the waiver of appeal rights
was not called to Banks' attention. A waiver of appeal rights must be
knowingly and voluntarily made. See United States v. Broughton-
Jones, 71 F.3d 1143, 1146 (4th Cir. 1995). To determine whether a
waiver is knowing and intelligent, the particular facts and circum-
_________________________________________________________________
*After submitting his pro se brief, Banks filed an addendum to it enti-
tled "Motion to Supplement Record." We consider this a motion for
leave to file a supplement to the pro se brief.
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stances of the case, including the background, experience, and con-
duct of the defendant, must be examined. Id.Here, the record does not disclose how much consultation Banks
had with his attorney before he entered into the agreement. Banks
dropped out of school in the ninth grade and subsequently was con-
victed of a string of thefts and other offenses which kept him either
in jail or on probation until he committed the instant offense. His
assertion that he received a G.E.D. while incarcerated was not veri-
fied. Banks' only prior experience in federal court was a trespassing
conviction when he was fifteen years old, for which he was sentenced
to sixty days, concurrent with a state juvenile sentence he was then
serving, and two years probation. In 1990, having violated probation,
Banks received a one-year sentence, some of which was spent in a
halfway house. Despite this brush with the federal criminal justice
system, we cannot conclude on the record before us that Banks fully
appreciated the significance of the waiver. Cf. United States v. Davis,
954 F.2d 182, 186 (4th Cir. 1992) (waiver valid though not mentioned
in plea colloquy where college graduate defendant had discussed plea
agreement extensively with defense counsel). Consequently, we find
the waiver ineffective.
In conducting the Rule 11 plea colloquy, the district court failed to
inform Banks that he could be subjected to a term of supervised
release. We find this error harmless in view of Banks' long familiarity
with probationary sentences. Fed. R. Crim. P. 11(h). Banks argues in
his pro se brief that implementation of the Brady Act's background
check and five-day waiting period, see 18 U.S.C.A. § 922(s), would
have prevented him from making an illegal purchase. Be that as it
may, Banks deliberately bought the firearms on the pretense that he
had not been convicted of a felony. He made a knowing and voluntary
plea and the plea was supported by an adequate factual basis. We
therefore affirm the conviction.
In the Anders brief, defense counsel suggests that the district court
erred in refusing to depart below the guideline range on the ground
that Banks bought the shotguns for a lawful reason (protection of his
family) and because he assisted the government in a drug investiga-
tion, although Banks did not claim to have provided any assistance at
the time he was sentenced. The district court's decision not to depart
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on this ground or on other grounds suggested for the first time in the
pro se brief is not reviewable on appeal. See United States v. Bayerle,
898 F.2d 28, 31 (4th Cir. 1990).
Both in the Anders brief and in the pro se brief, Banks alleges that
the district court erred in determining his criminal history. After a
careful review of his claims, we do not find that the district court
plainly erred in adopting the criminal history category recommended
in the presentence report. Banks first contends that the offenses
described in ¶¶ 31-32 and in ¶¶ 33-34 of the presentence report should
have been treated as related cases. See U.S. Sentencing Guidelines
Manual, § 4A1.2, comment. (n. 3) (1994) (prior sentences count as
one if offenses occurred on same occasion, were part of single com-
mon scheme or plan, or were consolidated for trial or sentencing).
However, Banks did not object to the sentence calculation in the dis-
trict court. No plain error occurred because Banks did not produce
any evidence that the cases were formally consolidated, see United
States v. Allen, 50 F.3d 294, 297 (4th Cir.), cert. denied, ___ U.S.
___, 63 U.S.L.W. 3907 (U.S. June 26, 1995) (No. 94-9414), or that
the offenses were committed on the same occasion or were part of a
common scheme.
Banks also asserts that no points should have been given for a sen-
tence of probation before judgment listed in ¶ 35 of the presentence
report. Adult diversionary sentences are counted if they involved a
judicial determination of guilt or an admission of guilt in open court.
It is not clear from the presentence report whether there was such an
admission, but Banks did not challenge the calculation on this ground
or any other. Consequently, the district court did not plainly err in
accepting the probation officer's calculation. Banks further argues
that the district court should have departed downward pursuant to
USSG § 4A1.3, p.s. This claim is without merit because Banks did
not move for a departure and a decision not to depart would not be
reviewable in any case. See Bayerle, 898 F.2d at 31.
In his pro se brief, Banks alleges that, in determining his sentence,
the district court considered unreliable information that he had abused
drugs. However, the court did not make reference to possible drug
abuse when imposing sentence and Banks' denial of drug abuse was
included in the report. Banks also argues that he acquired the firearms
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to protect his family and should have received a reduction in offense
level because he intended to use the shotguns for lawful purposes.
The court considered and rejected this argument at sentencing. We
cannot say that the court clearly erred. Last, Banks makes various
claims of ineffective assistance of counsel which we will not consider
on direct appeal because ineffectiveness is not conclusively estab-
lished by the record. See United States v. Smith , 62 F.3d 641, 650 (4th
Cir. 1995).
In accordance with Anders, we have examined the entire record in
this case and find no other reversible error. We therefore affirm the
conviction and sentence. We grant Banks' "Motion to Supplement
Record." We dispense with oral argument because the facts and legal
contentions are adequately presented in the record and briefs, and oral
argument would not aid the decisional process.
AFFIRMED
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