United States v. Horton

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4221
ADONNE ANTHONY HORTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, Chief District Judge.
(CR-02-44)
Submitted: August 14, 2003
Decided: August 22, 2003
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
COUNSEL
Dwight R. Hall, Elkins, West Virginia, for Appellant. Zelda Elizabeth
Wesley, OFFICE OF THE UNITED STATES ATTORNEY, Clarks-
burg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. HORTON
OPINION
PER CURIAM:
Adonne Anthony Horton appeals his conviction and seventy-seven
month sentence for possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000). Horton’s attor-
ney has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), raising two issues but stating that, in his view, there
are no meritorious grounds for appeal. Although notified of his right
to do so, Horton has not filed a pro se supplemental brief. Finding no
reversible error, we affirm his conviction and sentence.
In the Anders brief, counsel first questions whether counsel was
ineffective for failing to inform Horton of the potential sentencing
range that he faced under the U.S. Sentencing Guidelines Manual.
Claims of ineffective assistance of counsel are generally not cogniza-
ble on direct appeal. United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997). To allow for adequate development of the record, the pre-
sumptive rule is that ineffective assistance of counsel claims must be
pursued in a 28 U.S.C. § 2255 (2000) motion. United States v. Hoyle,
33 F.3d 415, 418 (4th Cir. 1994). An exception exists when the record
conclusively establishes ineffective assistance of counsel. King, 119
F.3d at 295. A review of the record does not conclusively establish
that Horton received ineffective assistance of counsel. Accordingly,
we find that Horton must pursue this claim on collateral review.
Counsel also questions whether the Government engaged in pro-
secutorial misconduct by setting forth a lower estimated sentencing
range in its plea offer. To prevail on a claim of prosecutorial miscon-
duct, a defendant must show: (1) the prosecutor’s conduct was
improper; and (2) the conduct prejudicially affected his substantial
rights so as to deprive him of a fair proceeding. United States v. Gol-
ding, 168 F.3d 700, 702 (4th Cir. 1999). Our review of the record
reveals that the Assistant United States Attorney ("AUSA") properly
qualified her estimated sentencing range by cautioning Horton that
the probation office might disagree with her conclusions and noting
that the range could increase if Horton’s "criminal history points
should go up" or if he was found to be an armed career criminal. The
AUSA based her calculation on a criminal history category of III.
UNITED STATES v. HORTON 3
Given Horton’s criminal record, however, he was ultimately assigned
a criminal history category of VI, which accounts for most of the
increase in his sentencing range. We find no prosecutorial misconduct
under these circumstances.
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. We there-
fore affirm Horton’s conviction and sentence. We remand the case,
however, to the district court for correction of a clerical error in the
criminal judgment. See Fed. R. Crim P. 36. The judgment erroneously
indicates that Horton was convicted under 18 U.S.C. § 922(a)(2)
rather than § 924(a)(2). This error does not affect the validity of Hor-
ton’s conviction or sentence.
This court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED AND REMANDED