US v. Leroy Parham, No. 08-4342 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4342 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEROY PARHAM, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:07-cr-00121-RBS-JEB-1) Submitted: September 29, 2009 Decided: October 28, 2009 Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Cristin Traylor, MCGUIRE WOODS LLP, Richmond, Virginia, for Appellant. D. Monique Broadnax, Special Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Leroy Parham pleaded guilty to possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a) (2006). Parham was sentenced imprisonment and now appeals. to ninety-six months of His attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), raising three issues but stating that there are no meritorious issues for appeal. Parham filed a pro se supplemental brief raising an additional issue. * In district knowing the court and We affirm. Anders erred brief, in voluntary. counsel accepting Because questions Parham s Parham did whether guilty not move the plea as in the district court to withdraw his guilty plea, any error in the Fed. R. Crim. P. 11 hearing is reviewed for plain error. See United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Furthermore, there is a strong presumption that a defendant s guilty plea is binding and voluntary adequate Fed. R. Crim. P. 11 hearing. if he has received an United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995); see Blackledge v. Allison, 431 U.S. 63, 74 (1977) (finding that statements made during a plea hearing carry a strong presumption * of verity ). Our We have considered the claim raised in Parham s pro se brief and conclude the claim lacks merit. 2 review of the record discloses that the district court fully complied with Rule 11. We conclude, therefore, that the district court did not err in accepting Parham s guilty plea as knowing and voluntary. Counsel next questions whether Parham s trial counsel was ineffective. To prove a claim of ineffective assistance of counsel, a defendant must show (1) that counsel s performance was deficient, prejudiced 668, the 687 and (2) that defense. (1984). the deficient Strickland v. With respect to performance 466 U.S. prong, the Washington, the first defendant must show that counsel s performance fell below an objective standard of reasonableness. Id. at 688. In addition, [j]udicial scrutiny of counsel s performance must be highly deferential. Id. at 689. Under the second prong of the test in the context of a conviction following a guilty plea, a defendant can show prejudice only by demonstrating a reasonable probability that, but for counsel s errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). This court may address a claim of ineffective assistance on direct appeal only if the lawyer s ineffectiveness conclusively Baldovinos, thoroughly appears 434 on F.3d reviewed the 233, the record. 239 record 3 (4th and United Cir. 2006). conclude that States We Parham v. have has failed to demonstrate that ineffective assistance conclusively appears on the record and, therefore, we decline to address this claim on direct appeal. Finally, counsel questions whether the district court erred in sentencing reasonableness, Parham. applying an We review abuse of a sentence discretion for standard. Gall v. United States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009), petition for cert. filed (U.S. July 24, 2009) (No. 09-5584). In so doing, we first examine the sentence for significant procedural error, including failing to calculate (or improperly calculating) the [g]uidelines range, treating the [g]uidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence . . . . Gall, 128 S. Ct. at 597. then substantive consider[s] sentence imposed. the This court reasonableness of the United States v. Evans, 526 F.3d 155, 161 (4th Cir.) (quoting Gall, 128 S. Ct. at 597), cert. denied, 129 S. Ct. 476 (2008). taking into account extent Substantive reasonableness review entails the of totality any variance of the from circumstances, including the range. United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 128 S. Ct. at 597). 4 the [g]uidelines If the sentence is within the guidelines reasonableness. range, we apply a presumption of United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding presumption of reasonableness for within-guidelines sentence). We have thoroughly reviewed the record and find that the sentence is both procedurally and substantively reasonable. The district court properly calculated the advisory guidelines range, considered the 18 U.S.C. § 3553(a) factors, and provided a comprehensive explanation of its chosen sentence. See United States v. Carter, 564 F.3d 325, 328-30 (4th Cir. 2009). In addition, of Parham substantive has failed reasonableness we to rebut accord the to his presumption within-guidelines sentence. We have examined the entire record in accordance with the requirements of Anders and have found no meritorious issues for appeal. We therefore affirm the judgment and deny counsel s motion to withdraw. This court requires that counsel inform Parham, in writing, of the right to petition the Supreme Court of the United States for further review. that a petition be filed, but counsel If Parham requests 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 on state that a copy thereof 5 was served Parham. 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 6

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