United States v. Hyden

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4211
JAMES RICHARD HYDEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
Glen M. Williams, Senior District Judge.
(CR-90-39-B)
Submitted: March 13, 1997
Decided: March 24, 1997
Before HALL, ERVIN, and WILKINS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Terry F. Rose, CLOER & ROSE, Hickory, North Carolina, for Appel-
lant. Julie C. Dudley, Assistant United States Attorney, Roanoke, Vir-
ginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
James Richard Hyden appeals his sentence for conspiracy to dis-
tribute or possession with intent to distribute cocaine under 21 U.S.C.
§ 846 (1994). Hyden's attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), concluding that there are
no meritorious grounds for appeal but raising five issues: whether (1)
Hyden's trial counsel was ineffective for failing to rebut information
in the Presentencing Investigative Report (PSR); (2) the district court
violated his plea agreement with the Government; (3) he entered into
the plea agreement knowingly and voluntarily; (4) the district court
erred by denying him a two point reduction for acceptance of respon-
sibility under the United States Sentencing Guidelines1 ("USSG");
and (5) the district court erred by making an upward departure from
the prescribed sentencing range. Hyden was notified of his right to
file an additional brief, but he failed to do so. 2
Hyden's claims are without merit. First, Hyden has failed to iden-
tify any erroneous information contained in the PSR, and our review
of the record reveals none. We do not find Hyden received ineffective
assistance of counsel meriting review on direct appeal. See United
States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992) (claim of inef-
fective assistance not properly brought on direct appeal unless inef-
fectiveness conclusively appears in trial record). Second, the district
court was not a party to the plea agreement between Hyden and the
Government, and the district court specifically informed Hyden that
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1 See United States Sentencing Commission, Guidelines Manual,
§ 3E1.1 (Nov. 1990). Hyden was sentenced in November 1990. How-
ever, after a later motion, filed under 28 U.S.C.§ 2255 (1994), amended
by Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, 110 Stat. 1214, it was found that the trial court failed to advise
him of his right to appeal his sentence, under Fed. R. Crim. P. 32(c)(5).
Therefore, Hyden was allowed to file a delayed notice of appeal.
2 Although Hyden himself did not file a pro se brief in this Court, his
counsel raised the five issues as "state[d] by the Defendant in his pro se
motion which are appropriate for the Appellant to raise on direct appeal."
The exact nature of this motion is unclear.
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it was not bound by the terms of the plea agreement at his plea hear-
ing. Third, the plea hearing reveals that Hyden affirmatively stated
that he entered his guilty plea voluntarily, that he was satisfied with
the services of his attorney, and that he knowingly pled guilty because
he was in fact guilty. We find no basis to conclude Hyden's plea was
coerced or entered into unknowingly. See Via v. Superintendent, Pow-
hatan Correctional Ctr., 643 F.2d 167, 171 (4th Cir. 1981) (holding
that statements of the accused at a plea hearing that facially demon-
strate the plea's validity are conclusive absent a compelling reason
why they should not be); see also United States v. DeFusco, 949 F.2d
114, 119 (4th Cir. 1991) (defendant's statements at plea hearing are
"strong evidence" of voluntariness). Fourth, although the court ini-
tially denied Hyden credit for acceptance of responsibility on the
basis of the probation officer's recommendation, the court did grant
him a two level reduction lowering his sentence from 115 months to
96 months of imprisonment. Fifth, the district court did not depart
from the prescribed sentencing range. Rather, Hyden received a base
level offense of 26 for conspiracy to distribute between .5 and 1.9
kilograms of cocaine, reduced by two levels for acceptance of respon-
sibility which with his criminal history category of IV gave him a
range of 77 to 96 months of imprisonment. Sentencing Table (USSG
§ 5A).
As required by Anders, we have independently reviewed the record
and all pertinent documents. We have considered all possible issues
presented, and we conclude that there are no nonfrivolous grounds for
appeal. Because the record discloses no reversible error, we affirm
Hyden's 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 a 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
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