United States v. Washington

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4227
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARIO FANEAK WASHINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-04-63)
Submitted: November 30, 2005 Decided: March 3, 2006
Before WILKINSON, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
M. Timothy Porterfield, Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Mario Faneak Washington appeals the district court’s
order sentencing him to 120 months’ imprisonment following his
guilty plea to a single count of possession with intent to
distribute at least five grams of cocaine base, in violation of 21
U.S.C. § 841(a)(1) (2000). Washington’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating that
there are no meritorious grounds for appeal, but questioning
whether (1) Washington was impermissibly sentenced in accordance
with the statutory minimum and (2) Washington received ineffective
assistance of counsel. We affirm.
In his plea agreement, Washington waived all rights to
appeal except for ineffective assistance of counsel, prosecutorial
misconduct, or the sentence to the extent one or more findings on
the guideline issues were inconsistent with the explicit
stipulations contained in the plea agreement. After a thorough and
comprehensive Fed. R. Crim. P. 11 plea colloquy, the district court
accepted Washington’s plea as knowing and voluntary.
Pursuant to U.S. Sentencing Guidelines Manual (“USSG”) §
2D1.1(c)(7) (2004), a base offense level of twenty-six was
assigned, based on a drug quantity of at least five grams, but not
more than twenty grams, of cocaine base. A three-level reduction
for acceptance of responsibility was applied to the base offense
level, rendering a total offense level of twenty-five. USSG
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§ 3E1.1(a),(b). Based on a total offense level of twenty-three and
a criminal history category of V, Washington’s recommended
guideline range was 84 to 105 months’ imprisonment. Nevertheless,
Washington was sentenced to the statutory minimum term for this
offense, 120 months’ imprisonment. See 21 U.S.C. §§ 841(b)(1)(B)
and 851 (2000).
Washington’s claim that he was inappropriately sentenced
in accordance with the statutory minimum is without merit. As this
court recently made clear in United States v. Robinson, 404 F.3d
850, 862 (4th Cir.), cert. denied, 126 S. Ct. 288 (2005), “[United
States v. Booker, 125 S. Ct. 738 (2005),] did nothing to alter the
rule that judges cannot depart below a statutorily provided minimum
sentence.” Section 841(b)(1)(B)’s enhanced penalty provision reads
in relevant part: “If any person commits such a violation [of this
subparagraph] after a prior conviction for a felony drug offense
has become final, such person shall be sentenced to a term of
imprisonment which may not be less than ten years.” Washington
pled guilty under § 841(a) and he admitted to the predicate offense
for the enhanced penalty provision at the plea colloquy.
Accordingly, the application of § 841(b(1)(B)’s enhanced penalty
provision to Washington is clear and unequivocal. Thus, the
district court was required by statute to impose the mandatory
minimum term of imprisonment, and there is no Booker error. See
Robinson, 404 F.3d at 862 (“[Even after Booker], a district court
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has no discretion to impose a sentence outside of the statutory
range established by Congress for the offense of conviction.”).
Washington’s claim of ineffective assistance of counsel
is equally unavailing. A claim of ineffective assistance of
counsel generally should be asserted on collateral review rather
than on direct appeal, unless ineffective assistance is apparent on
the face of the record. United States v. King, 119 F.3d 290, 295
(4th Cir. 1997). To succeed on claims of ineffective assistance of
counsel, a defendant must show that his counsel’s performance fell
below an objective standard of reasonableness, and his counsel’s
deficient performance was prejudicial. Strickland v. Washington,
466 U.S. 668, 687-88 (1984). Turning to the second prong of
Strickland in the context of a guilty plea, a defendant must
demonstrate that there is a reasonable probability that, but for
counsel’s unprofessional errors, he would not have pleaded guilty
and would have insisted on going to trial. Hill v. Lockhart, 474
U.S. 52, 59 (1985). Washington’s claim of ineffective assistance
fails because he fails to make such a showing on the face of the
record on appeal.
Finding no meritorious issues upon our review of the
record, we affirm Washington’s conviction and 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
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counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client. 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.
AFFIRMED
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