US v. Chakiris Ramsey, No. 10-4174 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4174 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHAKIRIS LAGEORGE RAMSEY, a/k/a Chakiris Legeorge Ramsey, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:07-cr-00050-RLV-DSC-5) Submitted: June 9, 2011 Before WILKINSON and Senior Circuit Judge. NIEMEYER, Decided: Circuit Judges, June 17, 2011 and HAMILTON, Affirmed by unpublished per curiam opinion. Joseph R. Conte, LAW OFFICES OF J.R. CONTE, P.L.L.C., Washington, D.C., for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Chakiris Lageorge Ramsey appeals his conviction after a guilty plea and 147-month sentence for one count of conspiracy to possess with intent to distribute a quantity of cocaine and cocaine base (2006); one in violation count of of 21 possession U.S.C. with §§ 841(b)(1)(A), intent to 846 distribute a quantity of cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2006); and one count of using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (2006). On appeal, counsel for Ramsey has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious issues for appeal but questioning whether the district court complied with the mandates of Fed. R. Crim. P. 11, whether Ramsey s sentence was reasonable, whether Ramsey executed a valid waiver of his appellate ineffective. rights, and whether trial counsel was The Government has elected not to file a brief, and although Ramsey was notified of his right to file a pro se supplemental brief, he has not done so. I. We affirm. Appeal Waiver Counsel argues in the Anders brief that Ramsey validly waived his right to appeal. The Government, however, has not filed a brief in this court invoking the appellate waiver or 2 moved to dismiss this appeal. appeal waiver, review. this court Thus, despite the existence of an will conduct the required Anders See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (noting that if the government does nothing in response to an Anders brief in a case where the appellant has waived his right to appeal, the court will perform the required Anders review); see also United States v. Metzger, 3 F.3d 756, 757-58 (4th Cir. 1993) (holding that the government s failure to assert an appeal waiver as a bar to the appeal constitutes a waiver of reliance on the appeal waiver). II. Adequacy of the Rule 11 Hearing Because Ramsey did not move in the district court to withdraw his guilty plea, any error in the Rule 11 hearing is United States v. Martinez, 277 F.3d reviewed for plain error. 517, 525-26 (4th Cir. 2002). show: (1) an error was To establish plain error, he must made; (2) the error (3) the error affects substantial rights. Massenburg, 564 F.3d 337, unpreserved Rule 11 error). lies within [this 342-43 is plain; and United States v. (4th Cir. 2009) (reviewing The decision to correct the error court s] discretion, and [the court] exercise[s] that discretion only if the error seriously affects the fairness, integrity or public 3 reputation of judicial proceedings. Id. at 343 (internal quotation marks omitted). The defendant bears the burden of showing plain error. We have reviewed the record and find no error. The district court went to some length to explain how the sentence would be calculated and the rights that Ramsey abandoned by pleading guilty, and to establish a factual basis for the plea. Because Ramsey s plea was knowing, voluntary, and supported by an adequate factual basis, we conclude that the plea was properly accepted by the district court. III. Sentence Ramsey s original advisory Guidelines range was 168 to 210 months, pursuant to plus 18 a mandatory U.S.C. five § 924(e) year (2006), consecutive because convicted of violating 18 U.S.C. § 924(c)(1). moved for a assistance. downward departure due to sentence Ramsey was The Government Ramsey s substantial The court granted the motion, and Ramsey s revised advisory Guidelines range was 108 to 135 months plus the five year mandatory consecutive sentence. The district court imposed a sentence of eighty-seven months plus five years, for a total of 147 months significantly below the low end of Ramsey s revised advisory Guidelines range. An appellate court reviews a sentence reasonableness under an abuse-of-discretion standard. 4 for Gall v. United States, 552 U.S. 38, 51 (2007). consideration of both the reasonableness of a sentence. This review requires procedural Id. and substantive First, the court must assess whether the district court properly calculated the Guidelines range, considered the § 3553(a) factors, analyzed any arguments presented by the selected sentence. parties, and sufficiently explained the Id. at 49-50; see United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) ( [A]n individualized explanation must accompany every sentence. ); United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (same). An extensive explanation is not required as long as the appellate court is satisfied that [the arguments district and has a court] reasoned has basis legal decisionmaking authority. considered for the parties exercising [its] own United States v. Engle, 592 F.3d 495, 500 (4th Cir.) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)), cert. denied, 131 S. Ct. 165 (2010). While we note that the district court imposed a sentence with little to no explanation, we decline to notice the error. Counsel, in the Anders brief, recognizes that the court did not explain its sentence, but nevertheless suggests that the sentence should be affirmed. record, and we agree. from his original We have independently reviewed the Ramsey received a significant departure Guidelines range and received a sentence nearly two years less than the low end of his revised Guidelines 5 range. In these circumstances, we conclude that the sentence was procedurally reasonable. Turning to the substantive reasonableness of the sentence, this court presumes on appeal that a sentence within a properly calculated Guidelines range is reasonable. States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). sentence range. was considerably lower than his advisory United Ramsey s Guidelines To the extent that the Anders brief seeks review of the extent of the downward departure, this court lacks jurisdiction United States v. Hill, 70 F.3d 321, 324 to hear such a claim. (4th Cir. 1994). Accordingly, the sentence was substantively reasonable. IV. Ineffective Assistance of Counsel Counsel ineffective. next Claims addresses of whether ineffective trial counsel assistance generally are not cognizable on direct appeal. King, 119 F.3d 290, 295 (4th Cir. 1997). of was counsel United States v. Rather, to allow for adequate development of the record, a defendant generally must bring his motion. claims Id.; (4th Cir. 1994). cognizable establishes on in a United 28 States However, direct ineffective U.S.C.A. v. § 2255 Hoyle, ineffective appeal if the assistance. 6 (West 33 Supp. F.3d assistance record United 2010) 415, 418 claims are conclusively States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); King, 119 F.3d at 295. We have ineffective reviewed assistance record s face. of the record, counsel is and not we conclude conclusive on that the Thus, this claim is not cognizable on direct appeal. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court s judgment. This court requires that counsel inform Ramsey, in writing, of the right to petition the Supreme review. If Ramsey Court of requests the that United a States petition for be further filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Ramsey. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 7

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