United States v. Howard Blue

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4767
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HOWARD LAMONT BLUE,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:10-cr-00208-F-1)
Submitted: July 15, 2012 Decided: July 30, 2013
Before NIEMEYER, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Assistant United States Attorney, Yvonne V.
Watford-McKinney, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Howard Lamont Blue pleaded guilty in the Eastern District
of North Carolina to one count of conspiring to distribute fifty
grams or more of cocaine base (“crack”), in violation of 21
U.S.C. § 846; three counts of distributing fifty grams or more
of crack, in violation of 21 U.S.C. § 841(a)(1); and one count
of possessing fifty grams or more of crack with the intent to
distribute the same, in violation of 21 U.S.C. § 841(a)(1). On
September 11, 2012, the district court sentenced Blue to 188
months in prison. In this appeal, Blue contends that (1) his
court-appointed counsel was ineffective; (2) the drug quantities
used in calculating his advisory Sentencing Guidelines range
were unsupported by reliable evidence; (3) the Guidelines’ 18:1
ratio of crack to powder cocaine violates the Constitution; and
(4) the court violated his constitutional rights by warning him
that false denials of relevant conduct identified in the
presentence investigation report (the “PSR”) would cause him to
lose credit for acceptance of responsibility. We reject each
contention and affirm.
An ineffective assistance of counsel claim is not
cognizable on direct appeal of a criminal judgment unless “the
record conclusively establishes ineffective assistance.” United
States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
Where ineffective assistance is not conclusively established by
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the record, “the proper avenue for such claims is a 28 U.S.C.
§ 2255 motion filed with the district court.” Id. Because the
record in this case does not conclusively establish that the
performance of Blue’s counsel “fell below an objective standard
of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688
(1984), we decline to consider this issue on direct appeal. See
United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). *
We must also reject Blue’s assertion that the drug
quantities identified in the PSR and adopted by the district
court were unsupported by competent evidence. The court’s
calculation of the quantity of drugs attributable to Blue for
sentencing purposes is a factual determination that we review
only for clear error. See United States v. Randall, 171 F.3d
195, 211 (4th Cir. 1999). At sentencing, the government was
obliged to prove those drug quantities by a preponderance of the
evidence. See United States v. Bell, 667 F.3d 431, 441 (4th
Cir. 2011). When drug quantities cannot be proven by actual
seizures or other direct evidence, the government must present
evidence from which the sentencing court may “approximate the
*
Blue has requested, alternatively, that we appoint counsel
to assist in the preparation of a petition under 28 U.S.C.
§ 2255. Like Blue’s claim of ineffective assistance of counsel,
this request is premature. Pursuant to 18 U.S.C. § 3006A(a)(2),
a United States magistrate judge or district court may appoint
counsel to financially eligible persons seeking relief under
§ 2255, if the interests of justice so require.
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quantity.” Id. (internal quotation marks omitted). In so
doing, the court is permitted to rely on direct or hearsay
testimony of lay witnesses as to the quantities attributable to
the defendant. See id. Here, the drug quantities attributed to
Blue were derived from a post-arrest statement that he made to
the arresting officer and from a statement made to law
enforcement by a co-conspirator who regularly purchased drugs
from Blue. The district court credited those statements at
sentencing, and did not clearly err in so doing.
Blue’s constitutional challenge to the 18:1 ratio of crack
to powder cocaine likewise must fail. Because the issue was not
raised below, it is reviewed only for plain error. See United
Stats v. Olano, 507 U.S. 725, 732 (1993); Fed. R. Crim. P.
52(b). Even before Congress passed the Fair Sentencing Act,
which reduced the crack to powder ratio from 100:1 to 18:1, see
Dorsey v. United States, 132 S. Ct. 2321, 2329 (2012), we
repeatedly affirmed the constitutionality of the higher
sentencing ratio against both equal protection and due process
challenges. See United States v. Perkins, 108 F.3d 512, 518
(4th Cir. 1997); United States v. Jones, 18 F.3d 1145, 1151 (4th
Cir. 1994); United States v. Bynum, 3 F.3d 769, 774-75 (4th Cir.
1993). To the extent that Blue seeks reconsideration of those
decisions, a panel of this court cannot overrule the decision of
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a prior panel. See United States v. Simms, 441 F.3d 313, 318
(4th Cir. 2006).
Finally, we reject Blue’s contention that the district
court violated his Fifth Amendment rights when it informed him
that false denials of relevant conduct identified in the PSR
would cause him to lose credit for acceptance of responsibility.
Section 3E1.1 of the Guidelines provides for a two-level
decrease to a defendant’s offense level “[i]f the defendant
clearly demonstrates acceptance of responsibility for his
offense.” USSG § 3E1.1(a). At sentencing, Blue objected to the
drug quantities attributed to him in the PSR by (1) denying
having made any statement to the arresting officer, and (2)
seeking to discredit the statement of his co-conspirator.
Before hearing evidence on those objections, the court informed
Blue that, in the event his factual denials were found to be
false and his objections thereby overruled, he would lose the
two-level reduction for acceptance of responsibility. The court
left Blue with the choice of pursuing his objections, which Blue
then elected to withdraw.
The district court applied the acceptance of responsibility
provision in accordance with the application notes thereto,
which provide that “a defendant who falsely denies, or
frivolously contests, relevant conduct that the court determines
to be true has acted in a manner inconsistent with acceptance of
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responsibility.” USSG § 3E1.1 cmt. n.1. Blue’s constitutional
challenge to that provision must fail as contrary to United
States v. Frazier, 971 F.2d 1076, 1082 (4th Cir. 1992), in which
we concluded that “the Fifth Amendment is not offended” by the
choice imposed upon defendants by USSG § 3E1.1.
Pursuant to the foregoing, we affirm the judgment of the
district court. 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
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