US v. Carlos William, No. 10-4582 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4582 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CARLOS LAMONT WILLIAMS, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:09-cr-00056-WO-1) Submitted: May 31, 2011 Decided: June 6, 2011 Before WILKINSON, DUNCAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Henry C. Su, HOWREY LLP, East Appellant. Ripley Rand, United Galyon, Assistant United States Carolina, for Appellee. Palo Alto, California, for States Attorney, Randall S. Attorney, Greensboro, North Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Carlos Lamont Williams pled guilty to possession with intent to ( BZP ), distribute in violation 1,152.3 of grams 21 of U.S.C. N-Benzylpiperazine § 841(a)(1), (b)(1)(C) (2006), and possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), received a 110-month sentence. sentence was procedurally 924(a)(2) (2006). He On appeal, Williams argues his unreasonable because his advisory Guidelines range was not properly calculated. Specifically, he maintains that was premised on the BZP Guidelines being a range for BZP erroneously 3,4-Methylenedioxymethamphetamine ( MDMA ) Mimic Drug and a Controlled Substance Analogue. In fact, he claims recent case law and notices from the DEA suggest that the most closely related controlled substance to BZP would be amphetamine, but much less potent. sentence was procedurally Next, Williams argues his unreasonable because the district court failed to explain its reasons for denying his motion for a downward variance. Last, although Williams acknowledges the district court overruled his objection to a firearm enhancement as moot, he raises it to preserve his objection. A sentence is reviewed abuse of discretion standard. 38, 51 (2007). for We affirm. reasonableness under an Gall v. United States, 552 U.S. This review requires consideration of both the procedural and substantive reasonableness of a sentence. 2 Id.; see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). A sentence imposed within the properly calculated Guidelines range is presumed reasonable by this court. United States v. Mendoza- Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). In determining the procedural reasonableness of a sentence, this court considers whether the district court properly calculated the defendant s Guidelines range, treated the Guidelines as advisory, considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed any arguments presented by the selected sentence. parties, and sufficiently explained the Gall, 552 U.S. at 51. Williams first argues the district court erred in relying on the presentence report ( PSR ), which converted BZP to MDMA for purposes of establishing a Guidelines range. noted by initially the Government raised this and claim conceded in a by Williams, sentencing withdrew the objection at sentencing. As Williams memorandum, but The Government posits that this claim is waived in light of the withdrawal of the objection. Williams counters that he is entitled to plain error review for two reasons. First, he claims he was pressured to go along with his counsel s decision to withdraw the objection during sentencing. Second, he maintains his counsel failed to render effective assistance with respect to the development and presentation of this objection and therefore he should not be bound by his counsel s decision to withdraw the objection. 3 Generally, unpreserved reviewed for plain error. States v. Olano, 507 errors in sentencing are See Fed. R. Crim. P. 52(b); United U.S. 725, 731-32 (1993). However, a defendant may waive appellate review of a sentencing error if he raises and then knowingly withdraws an objection to the error See United States v. Horsfall, 552 before the district court. F.3d 1275, withdrawal 1283 of (11th Cir. objection 2008) to (finding sentence that defendant s enhancement precluded appellate review of enhancement); United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) ( A party who identifies an issue, and then explicitly withdraws it, has waived the issue. ); see also United States v. Chapman, 209 F. App x 253, 268 n.4 (4th Cir. 2006) (No. 04-5010) (noting that withdrawal of [an] objection amounts to a waiver of any complaint . . . , precluding us from considering the issue even under plain error review ) (argued but unpublished). An appellant is precluded See Rodriguez, 311 from challenging a waived issue on appeal. F.3d at 437. Such a waiver is distinguishable from a situation in which a party fails to make a timely assertion of a right what courts typically call a forfeiture, id. (quoting Olano, 507 U.S. at 733), which, as noted above, may be reviewed on appeal for plain error. Here, objected to the the See Olano, 507 U.S. at 733-34. record probation reflects that officer s 4 Williams calculation initially of his Guidelines range based on BZP being treated as an MDMA analog. However, during sentencing, Williams withdrew his objection. Therefore, it is clear that Williams has waived this issue, and this Court is precluded from considering it on appeal. Williams argues that he was essentially pressured into agreeing to the withdrawal of the objection and that counsel was ineffective in developing the BZP/MDMA conversion objection and in choosing to withdraw it. Claims of ineffective assistance generally are not cognizable on direct appeal. King, 119 F.3d 290, 295 (4th Cir. 1997). United States v. Rather, to allow for adequate development of the record, a defendant must bring his claim in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion. exception exists where ineffective assistance. the record conclusively Id. An establishes United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). To succeed on his claim, Williams must show that (1) trial counsel s performance was constitutionally deficient and (2) such deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984). To satisfy the performance prong, Williams must demonstrate that trial counsel s performance fell below an objective standard of reasonableness under prevailing professional norms. 688. Id. at The prejudice prong is satisfied if Williams demonstrates that there is a reasonable probability that, but for [trial] 5 counsel s unprofessional errors, the result of the proceeding would have been different. Id. at 694. We conclude there is no ineffective assistance conclusively appearing on the record. See United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991) (an ineffective assistance of counsel claim is best raised in a § 2255 motion so that counsel can be afforded adequate opportunity to explain the reasons surrounding the action of inaction to which [petitioner] takes exception ) (internal citations omitted). To the extent that Williams argues he was pressured into withdrawing record. the objection, his claim is belied by the Initially, Williams filed a pro se objection to the BZP/MDMA conversion. At sentencing, after counsel stated that he was withdrawing the objection, Williams informed the court that he was uncertain about the withdrawal. court afforded him a sixteen-minute After the district recess to confer with counsel, Williams informed the court that he had discussed the issue with counsel, that he fully understood what was taking place, and that he agreed with the withdrawal of the objection. Under these circumstances, the record does not reflect undue pressure. To the extent that Williams argues counsel pressured him into withdrawing the objection, this claim too is better raised in a § 2255 motion, where the record may be more fully 6 developed to reflect the communications between Williams and counsel. Williams unreasonable next because claims the his district sentence court is did procedurally not articulate reasons for denying his motion for a downward variance to avoid unwarranted sentencing disparities under 18 U.S.C. § 3553(a)(6) (2006). Because Williams requested a sentence below the Guidelines range, his claim was properly preserved, and this court reviews it for reasonableness under an abuse of discretion standard, Lynn, 592 reversing F.3d 572 unless at . 576, . 578 . the ( By error drawing was harmless. arguments from § 3553 for a sentence different than the one ultimately imposed, an aggrieved party sufficiently alerts the district court of its responsibility to render an individualized explanation addressing those arguments, and thus preserves its claim. ); cf. United States v. Hernandez, 603 F.3d 267, 270 (4th Cir. 2010) (reviewing claim of procedural unreasonableness for plain error because defendant did not argue for a sentence different from the sentence that he received). At sentencing, Williams counsel advised that the court start at 100 months and then vary downward based on the other cases involving BZP. After reviewing the submitted materials, the court stated it really had a hard time comparing things like criminal histories or nature and circumstances of 7 the offense or all of the history and characteristics of the defendant. It further explained that, while the BZP cases from other districts may be some help in terms of evaluating the seriousness of the offense, there are a lot of gaps in there that make it difficult to do a direct comparison between the sentences that are imposed. variance, finding the use Ultimately, the court denied the of the Guidelines calculation as calculated was appropriate. We conclude the district court s explanation was sufficient. This court does not evaluate the adequacy of the district court s explanation in a vacuum, but also considers explanation. [t]he context surrounding a district court s United States v. Montes-Pineda, 445 F.3d 375, 381 (4th Cir. 2006). Accordingly, dispense with oral we affirm argument Williams because the sentence. * facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED * Because Williams waived his argument as to the district court s calculation of the Guidelines range based on count two, we conclude Williams argument pertaining to the firearm enhancement imposed under the offense level computation for count four is moot. See United States Sentencing Guidelines Manual § 3D1.3(a) (2009) (instructing that the count producing the highest adjusted offense level in the group is used to determine the Guideline calculations for the group). 8

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