United States v. Allen

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4462
ANTONY ALLEN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Walter E. Black, Jr., Senior District Judge.
(CR-01-369-B)
Submitted: June 20, 2003
Decided: July 3, 2003
Before WILKINSON and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A.,
Elkridge, Maryland, for Appellant. Thomas M. DiBiagio, United
States Attorney, Gina L. Simms, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
2 UNITED STATES v. ALLEN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Antony Allen appeals his conviction and eighty-seven-month sen-
tence following a jury trial on a single count of carjacking, a violation
of 18 U.S.C. § 2119 (2000). Allen argues his conviction and sentence
rest on the district court’s alleged errors in denying his motion for
new trial based on the composition of the jury pool, admitting his
accomplice’s plea agreement, and in applying the relevant Sentencing
Guidelines provision regarding use of a firearm. Allen also contends
his trial counsel provided inadequate assistance. For the following
reasons, we affirm.
Allen’s objection to the racial composition of the venire from
which his jury was selected, which formed the basis for his motion
for new trial under Fed. R. Crim. P. 33, is misplaced. This Court
reviews the denial of a Rule 33 motion for new trial for abuse of dis-
cretion. United States v. Adam, 70 F.3d 776, 779 (4th Cir. 1995).
However, Allen’s argument is premised almost entirely on the results
of the random juror selection process employed in Maryland, which
has been judicially approved. See United States v. Meredith, 824 F.2d
1418, 1424 (citing United States v. Blair, 493 F. Supp. 398, 403 (D.
Md. 1980)). Because a criminal defendant cannot demonstrate a vio-
lation of the Jury Selection and Service Act of 1968, 28 U.S.C.
§§ 1861-868 (2000), by simply alleging that the racial composition of
the venire does not match that of the community, and Allen does not
demonstrate that the random selection procedure prescribed in the dis-
trict was manipulated or did not result in substantial proportional rep-
resentation, we find this assignment of error unpersuasive. See
Meredith, 824 F.2d at 1424 n.3; United States v. DiTommaso, 405
F.2d 385, 390 (4th Cir. 1968).
Allen’s objections to the admission of his accomplice’s plea agree-
ment into evidence and the district court’s application of the Sentenc-
UNITED STATES v. ALLEN 3
ing Guidelines are reviewable only for plain error, as Allen did not
raise these objections below. See Fed. R. Crim. P. 52. As a result,
Allen must demonstrate: "(1) whether there was error; (2) whether it
was plain; (3) whether it affected [his] substantial rights; and (4)
whether, if the first three criteria are met, [this Court] should exercise
[its] discretion to notice the error." United States v. Martinez, 277
F.3d 517, 529 (4th Cir.), cert. denied, 123 S. Ct. 200 (2002).
The Government’s introduction of the plea agreement of Allen’s
accomplice into evidence was not error. The Government may intro-
duce a witness’s plea agreement "so that the jury may assess the cred-
ibility of the witnesses the government asks them to believe." United
States v. Henderson, 717 F.2d 135, 137 (4th Cir. 1983) (internal quo-
tations omitted). Further, the statement of facts contained in the plea
agreement was not offered as proof of Allen’s guilt, but to rehabilitate
the witness’s credibility. Because the statement of facts in the plea
agreement was offered not "for [its] truth but for the limited purpose
of rehabilitation," Fed. R. Evid. 801(d)(1)(B) and its concomitant
restrictions do not apply. See United States v. Ellis, 121 F.3d 908,
919-20 (4th Cir. 1997).
Nor do we find error, plain or otherwise, in the district court’s
application of the sentencing enhancements applicable to carjacking.
The Sentencing Guidelines set at twenty-eight the adjusted offense
level of a defendant who does not discharge but otherwise uses a fire-
arm in connection with a carjacking. See U.S. Sentencing Guidelines
Manual § 2B3.1(b)(2)(B), (b)(5) (2002). Allen’s contention that the
district court should have applied the lesser sentencing guideline for
brandishing, see § 2B3.1(b)(2)(C), rather than "use," is meritless, as
we find the trial testimony concerning Allen’s reliance on the firearm
demonstrates he did more than simply brandish a firearm. See USSG
§ 1B1.1, comment. (n.1(f)) (2002) (cross referenced by § 2B3.1, com-
ment. (n.1)).
Finally, Allen’s contention that he received ineffective assistance
of counsel at trial is not cognizable on direct appeal. Allen argues his
attorney was ineffective because he did not object to the admission of
the plea agreement or the district court’s calculation of the sentence.
However, in order to prevail on a claim of ineffective assistance on
direct appeal, Allen must demonstrate not only that his attorney’s
4 UNITED STATES v. ALLEN
actions were both deficient and prejudicial, see Strickland v. Wash-
ington, 466 U.S. 668 (1984), but that these deficiencies "conclusively
appear" from the record before this Court. See United States v. Gas-
tiaburo, 16 F.3d 582, 590 (4th Cir. 1994) (citing cases). From the
record before us, we are unable to conclusively determine that Allen’s
trial counsel provided ineffective assistance.
Accordingly, we affirm Allen’s conviction and sentence. We dis-
pense 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