US v. Trayone Burton, No. 09-4123 (4th Cir. 2010)

Annotate this Case

Download PDF

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4123 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TRAYONE MAURICE BURTON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (3:07-cr-00773-JFA-1) Submitted: June 29, 2010 Before WILKINSON and Senior Circuit Judge. KEENAN, Decided: Circuit Judges, July 9, 2010 and HAMILTON, Affirmed by unpublished per curiam opinion. Eric Hardy Imperial, THE LAW OFFICES OF ERIC H. IMPERIAL, Washington, D.C., for Appellant. John David Rowell, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Trayone Maurice Burton appeals his conviction and 360 month sentence for conspiracy to possess with intent to distribute and to distribute five kilograms or more of powder cocaine and 1,000 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841, 846 (2006) (Count 1); aiding and abetting in the possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 (2006) (Count 2); and being a felon in possession of firearms, in violation of 18 U.S.C. §§ 922, 924 (2006) (Count 4). Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 739 (1967), questioning ineffective and whether whether Burton s Burton s first sentence was attorney was substantively reasonable, but determining there are no meritorious issues on appeal. Additionally, Burton s counsel indicated that Burton wished to raise three issues on appeal: erred in calculating the drug that the district court weight for which he was responsible, rather than the allowing it to be calculated by a jury; the jury should have received an instruction under Pinkerton v. United States, 328 U.S. 640 (1946); and the judge should have granted Burton s motion for a mistrial, based on a witness s Government. reference to Burton s prior cooperation with The Government has elected not to file a brief. affirm. 2 the We Burton s attorney failed original attorney meaningful that manner. Burton s interview In former Burton on first to contends represent particular, attorney numerous that Burton s Mr. Burton in Burton s counsel alleges allowed occasions the Government outside of any to counsel s presence, and Burton contended during the trial that his former attorney instructed him to withhold information from the Government. Claims of ineffective assistance of counsel are not cognizable on direct appeal unless the record conclusively United States v. James, 337 establishes ineffective assistance. F.3d 387, 391 (4th Cir. 2003); United States v. Richardson, 195 F.3d 192, 198 development (4th of the Cir. 1999). record, To generally allow claims for of adequate ineffective assistance should be brought in a 28 U.S.C.A. § 2255 (West 2006 & Supp. 2010) motion. (4th Cir. 1997). does not United States v. King, 119 F.3d 290, 295 After reviewing the record, we find that it Therefore, conclusively Burton s establish claims of ineffective ineffective assistance. assistance are not cognizable on direct appeal. Burton s counsel next contends that Burton s sentence was both unreasonable, his acceptance as substantial of Burton received assistance credit 3 the Government Regardless responsibility. to insufficient of for and his whether the sentence imposed is inside or outside the [g]uidelines range, the appellate court must review the sentence under an abuse-ofdiscretion standard. (2007). Gall v. United States, 552 U.S. 38, 51 Appellate courts are charged with reviewing sentences for both procedural and substantive reasonableness. In assess determining whether the procedural district court reasonableness, properly defendant s advisory guidelines range. We must then consider the determine 18 whether U.S.C. the § 3553(a) Id. we first calculated the Gall, 552 U.S. at 49-50. district (2006) court failed to factors and any arguments presented by the parties, treated the guidelines as mandatory, selected a sentence based on clearly erroneous facts, or failed to sufficiently explain the selected sentence. Id. at 51; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). Finally, we review the substantive reasonableness of the sentence, taking into account the totality of the circumstances, including the extent of any variance from the Pauley, 511 F.3d at 473 (quoting Gall, [g]uidelines range. 552 U.S. at 51). We calculated afford sentences guidelines range See Gall, 552 U.S. at 51. that a fall within presumption of the properly reasonableness. Such a presumption can be rebutted only by showing that the sentence is unreasonable when measured against the § 3553(a) factors. United States v. Montes-Pineda, 4 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks and citation omitted). Burton s sentence After reviewing the record, we find that is both procedurally and substantively reasonable. Finally, issues in Burton s Anders the brief counsel at raises Burton s three additional instruction. First, Burton avers that the district court erred in calculating the drug weight attributable to Burton, rather than allowing the weight to be calculated by the jury. We find this issue to be without merit. Next, Burton contends that the jury should have been instructed that it needed to make a finding as to the drug quantity specifically applicable to him in accordance Pinkerton v. United States, 328 U.S. 640 (1946). with However, the principles outlined in Pinkerton are only applicable when a conspirator is charged with a substantive offense arising from the actions of a coconspirator, charged with conspiracy. 304, 313 (4th Cir. 2005). not when a conspirator is United States v. Collins, 415 F.3d Because Burton was charged with conspiracy, Pinkerton has no bearing on Burton s conviction, and this issue is without merit. Finally, Burton contends that the district court erred in denying his motion for a mistrial. We review the denial of a motion discretion. for a mistrial for abuse 5 of See United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997). In order for the trial court s ruling to constitute such an abuse of discretion, the defendant must show prejudice; no prejudice exists, however determinations the by instructions. Cir. if jury could following make the individual court s guilt cautionary United States v. Dorsey, 45 F.3d 809, 817 (4th 1995). After reviewing the record, we find that the district court did not abuse its discretion in denying Burton s motion for a mistrial. See United States v. Vogt, 910 F.2d 1184, 1193 (4th Cir. 1990) (finding that witness s impermissible testimony was incidental and not repeatedly referenced by witness or prosecution, and therefore did not warrant mistrial). We have reviewed the record in accordance with Anders and found no meritorious issues on appeal. affirm the judgment of the district court. Accordingly, we This court requires that counsel inform Burton in writing of his right to petition the Supreme Court of the United States for further review. If Burton 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 the client. We dispense with oral argument because the facts and legal contentions are adequately expressed in the materials 6 before the court, and argument would not aid the decisional process. AFFIRMED 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.