United States v. Bailey

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4915
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL DENARD BAILEY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00230-TDS-2)
Submitted: November 22, 2010 Decided: May 27, 2011
Before WILKINSON, KING, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James E. Quander, Jr., QUANDER & RUBAIN, P.A., Winston-Salem,
North Carolina, for Appellant. Anna Mills Wagoner, Paul
Alexander Weinman, OFFICE OF THE UNITED STATES ATTORNEY,
Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Denard Bailey appeals his conviction and 195
month sentence for one count of conspiracy to distribute cocaine
base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846
(2006). Counsel has filed a brief in this court pursuant to
Anders v. California, 386 U.S. 738 (1967), certifying that there
are no meritorious issues for appeal, but questioning whether
the district court erred in denying Bailey’s motion to suppress
certain evidence discovered at his home pursuant to a search
warrant. The Government has not filed a brief. Bailey has
filed a pro se supplemental brief. Finding no error, we affirm.
I. Adequacy of Rule 11 Hearing
Because Bailey did not move in the district court to
withdraw his guilty plea, any error in the Rule 11 hearing is
reviewed for plain error. United States v. Martinez, 277 F.3d
517, 525-26 (4th Cir. 2002). To establish plain error, he “must
show: (1) an error was made; (2) the error is plain; and
(3) the error affects substantial rights.” United States v.
Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009) (reviewing
unpreserved Rule 11 error). “The decision to correct the error
lies within [this court’s] discretion, and [the court]
exercise[s] that discretion only if the error seriously affects
the fairness, integrity or public reputation of judicial
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proceedings.” Id. at 343 (internal quotation marks omitted).
Bailey bears the burden of showing plain error.
We have reviewed the record of the Rule 11 colloquy
and conclude that the district court adequately examined Bailey
to ensure that his plea was knowing, voluntary, and supported by
an adequate factual basis. Accordingly, we decline to conclude
that the court committed any error, plain or otherwise.
II. Reasonableness of Sentence
This court reviews Bailey’s sentence under a
deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). The first step in this review
requires the court to “ensure that the district court committed
no significant procedural error, such as improperly calculating
the Guidelines range.” United States v. Osborne, 514 F.3d 377,
387 (4th Cir.) (internal quotation marks, citations and
alterations omitted), cert. denied, 128 S. Ct. 2525 (2008). The
court then considers the substantive reasonableness of the
sentence, “tak[ing] into account the totality of the
circumstances.” Gall, 552 U.S. at 51. This court presumes on
appeal that a sentence within a properly calculated Guideline
range is reasonable. United States v. Allen, 491 F.3d 178, 193
(4th Cir. 2007).
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Here, as counsel suggests, the sentence imposed by the
district court was reasonable. The district court properly
adopted the presentence investigation report as amended, which
ultimately calculated the advisory Guidelines range of 262-327
months. The district court then imposed a sentence
significantly below the low end of the advisory Guidelines
range. Furthermore, the record suggests that the district court
was aware of the need to impose an individualized sentence and
satisfied that obligation. See United States v. Carter, 564
F.3d 325 (4th Cir. 2009). Moreover, Bailey’s sentence, which
fell well below the low end of his advisory Guidelines range, is
substantively reasonable.
III. Motion to Suppress
Counsel questions whether the district court erred in
denying the motion to suppress. In his pro se supplemental
brief, Bailey claims that the district court did in fact err in
doing so.
After the district court denied his motion to
suppress, Bailey entered into a guilty plea as to the first
count of the indictment. Bailey did not enter a conditional
guilty plea preserving his right to appeal the denial of his
suppression motion. Fed. R. Crim. P. 11(a)(2). Therefore,
Bailey’s guilty plea “waives all nonjurisdictional defects in
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the proceedings conducted prior to entry of the plea.” United
States v. Bundy, 392 F.3d 641, 644 (4th Cir. 2004). The right
to challenge on appeal a Fourth Amendment issue raised in a
motion to suppress is a nonjurisdictional defense and is thus
forfeited by an unconditional guilty plea. See Haring v.
Prosise, 462 U.S. 306, 320 (1983).
IV. Pro Se Supplemental Brief
In his pro se supplemental brief, Bailey argues that
the court erred in denying his motion to suppress and that his
attorney provided constitutionally ineffective assistance. We
find the former claim to be without merit. As to the latter
claim, this court adheres to the rule that ineffective
assistance of counsel claims are not cognizable on direct appeal
unless the record conclusively establishes counsel’s
constitutionally inadequate performance. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Because the
record does not conclusively demonstrate that Bailey’s counsel
was ineffective, we decline to consider this claim on direct
appeal.
Finally, in accordance with Anders, we have reviewed
the entire record and have found no meritorious issues for
appeal. We therefore affirm the judgment of the district court.
This court requires that counsel inform Bailey, in writing, of
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the right to petition the Supreme Court of the United States for
further review. If Bailey 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. Counsel’s motion must state that a copy thereof
was served on Bailey.
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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