US v. Derrick Harris, No. 08-4005 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4005 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DERRICK HARRIS, Defendant - Appellant. No. 08-4033 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CARLA MUSICK, Defendant - Appellant. Appeals from the United States District Court for the Southern District of West Virginia, at Beckley. Thomas E. Johnston, District Judge. (5:07-cr-00006-1; 5:07-cr-00006-2) Submitted: June 25, 2009 Decided: July 29, 2009 Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Jacqueline A. Hallinan, HALLINAN LAW OFFICES, PLLC, Charleston, West Virginia; Barron M. Helgoe, VICTOR VICTOR & HELGOE, LLP, Charleston, West Virginia, for Appellants. Charles T. Miller, United States Attorney, Miller Bushong, Assistant United States Attorney, Beckley, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: A superseding indictment charged Derrick Harris and Carla Musick with various joint and individual drug offenses. Harris pled guilty to Count 6, possession with intent to distribute five grams or more of cocaine base, and Musick pled guilty to Count 4, possession with intent to distribute five grams or more of cocaine base. Harris was sentenced to 205 months of imprisonment and Musick to 96 months. were sentenced Guidelines within ranges. their Their respective cases have Both defendants advisory been Sentencing consolidated on appeal. Harris alleges two issues. First, whether the district court clearly erred by denying his motion to withdraw his plea. Second, whether Harris lacked adequate assistance of counsel at district sentencing. court clearly Musick s erred by sole issue increasing is her whether base the offense level by two for possession of a weapon under U.S. Sentencing Guidelines Manual ( USSG ) § 2D1.1(b)(1) (2007). For the reasons that follow, we affirm. We find no merit to Harris claims. First, we find no abuse of discretion in the district court s decision to deny Harris motion to withdraw his guilty plea. Ubakanma, standard). 215 F.3d 421, 424 (4th Cir. 2000) United States v. (stating review The record reveals that the district court carefully 3 stepped through the six factors outlined in this court s opinion in United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991), in determining whether to grant the motion. cognizable claim of ineffective counsel in this direct appeal. Second, we find no assistance of Harris trial United States v. James, 337 F.3d 387, 391 (4th Cir. 2003). We review Musick s sentence under a deferential abuseof-discretion standard. Gall v. United States, 552 U.S. 38, __, 128 (2007). S. Ct. 586, 590 We find no procedural substantive error in the district court s sentence. Id. at 597; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). particular, we find no clear error in the or district In court s decision that the USSG § 2D1.1(b)(1) enhancement was warranted. United States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001). Thus, this claim fails. Accordingly, convictions and we sentences. affirm We Harris dispense with and Musick s 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 4
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