United States v. Hunter

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5074
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT DEON HUNTER, SR., a/k/a Bob Hunter,
Defendant - Appellant.
No. 07-5143
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT DEON HUNTER, JR., a/k/a Robert Dean Hunter, Jr.,
Defendant – Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:06-cr-00251-LHT-4; 1:06-cr-00251-LHT-3)
Submitted: March 11, 2009 Decided: March 27, 2009
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
No. 07-5074 affirmed; No. 07-5143 dismissed by unpublished per
curiam opinion.
Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Arden, North
Carolina; John C. Hunter, JOHN C. HUNTER LAW FIRM, LLC,
Asheville, North Carolina, for Appellants. Gretchen C. F.
Shappert, United States Attorney, Charlotte, North Carolina,
Amy E. Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Robert Deon Hunter, Sr.
(“Hunter, Sr.”) and his son, Robert Deon Hunter, Jr. (“Hunter,
Jr.”), appeal their convictions and sentences stemming from a
cocaine base distribution conspiracy. Hunter, Sr. was sentenced
to 262 months in prison, and Hunter, Jr. was sentenced to 120
months in prison, after they each pled guilty pursuant to plea
agreements to one count of conspiracy to possess with intent to
distribute cocaine base, in violation of 21 U.S.C. §§ 841, 846
(2006).
Counsel for the Hunters filed a consolidated brief in
which Hunter, Jr. asserts that the district court erred in
denying him a two-level reduction in his offense level because
of his allegedly minor role in the conspiracy. The Government
asserts that his appeal should be dismissed based on the
appellate waiver contained in his plea agreement. Hunter, Sr.
asserts that his sentence should be vacated because his attorney
was ineffective for failing to move for a downward departure
sentence based on the Guidelines’ crack/powder cocaine
disparity. The Government claims that Hunter, Sr.’s ineffective
assistance of counsel claim is not cognizable on direct appeal.
We dismiss in part and affirm in part.
We find that Hunter, Jr.’s appeal challenging the
district court’s Guidelines range calculation is explicitly
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barred by his appellate waiver because the record establishes
that Hunter, Jr. knowingly and intelligently waived his right to
appeal his sentence; the language of the appellate waiver and
plea agreement is clear and unmistakable and Hunter, Jr.
acknowledged his familiarity with and understanding of the
waiver at his Fed. R. Crim. P. 11 hearing. Accordingly, we must
enforce the appellate waiver’s terms and dismiss Hunter, Jr.’s
appeal. See United States v. Blick, 408 F.3d 162, 168-69 (4th
Cir. 2005).
We also find that Hunter, Sr.’s ineffective assistance
of counsel claim is not cognizable on appeal. Ineffective
assistance of counsel claims are not generally cognizable on
direct appeal unless ineffective assistance “conclusively
appears” on the record. See United States v. Baldovinos,
434 F.3d 233, 239 (4th Cir. 2006). To establish an ineffective
assistance of counsel claim, a defendant must show that his
counsel erred and then prove that but for counsel’s error, the
outcome of his proceedings would have been different. See
Strickland v. Washington, 466 U.S. 668, 694 (1984). To satisfy
the second prong of Strickland, Hunter, Sr. must demonstrate
that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. “A reasonable probability is a
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probability sufficient to undermine confidence in the outcome.”
Id.Hunter, Sr. claims that his counsel was ineffective
for failing to seek a downward departure sentence based on the
Guidelines’ crack/powder cocaine disparity. Because the law of
this circuit at the time of Hunter, Sr.’s sentencing clearly
prohibited a sentencing court from departing downward based on
the crack/powder cocaine disparity, see United States v. Eura,
440 F.3d 625, 634 (4th Cir. 2006) (holding that a district court
must not “rely on a factor that would result in a sentencing
disparity that totally is at odds with the will of Congress,”
such as reliance on “recommendations to narrow the 100:1
[crack/powder cocaine] ratio”), abrogated by, Kimbrough v.
United States, 128 S. Ct. 558, 574 (2007) (“[I]t would not be an
abuse of discretion for a district court to conclude when
sentencing a particular defendant that the crack/powder
disparity yields a sentence ‘greater than necessary’ to achieve
§ 3553(a)’s purposes.”), * it is unlikely--and certainly not
“reasonabl[y] probab[le]”--that the district court would have
granted a departure request. Because Hunter, Sr. has not shown
a reasonable probability that his sentence would have been
*
Hunter, Sr. was sentenced on October 31, 2007, and
Kimbrough issued on December 10, 2007.
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different had his attorney moved for a downward departure
sentence, we find that his ineffective assistance does not
conclusively appear on the record. See Strickland, 466 U.S. at
694.
For the foregoing reasons, we dismiss Hunter, Jr.’s
appeal (No. 07-5143) and affirm Hunter, Sr.’s conviction and
sentence (No. 07-5074). We 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.
No. 07-5074 AFFIRMED
No. 07-5143 DISMISSED
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