US v. Derek Richardson, No. 11-4149 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4149 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DEREK RICHARDSON, a/k/a Weasel, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrance W. Boyle, District Judge. (5:10-cr-00152-BO-1) Submitted: November 29, 2011 Before WILKINSON and Senior Circuit Judge. GREGORY, Decided: Circuit December 6, 2011 Judges, and HAMILTON, Affirmed by unpublished per curiam opinion. Walter H. Paramore, III, WALTER H. PARAMORE, III, P.C., Jacksonville, North Carolina, for Appellant. Jennifer P. MayParker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: In accordance with a written plea agreement, Derek Richardson pled guilty to possession with intent to distribute five grams (2006). now or more of cocaine base, 21 U.S.C. § 841(a)(1) Richardson was sentenced to 210 months in prison. appeals. His attorney has filed a brief He pursuant to Anders v. California, 386 U.S. 738 (1967), raising one issue but stating that Richardson there has are filed additional issues. no a pro meritorious se issues supplemental for appeal. brief raising We affirm. I Richardson contends in his pro se brief that his plea was involuntary because the court failed to advise him at the Fed. R. Crim. P. 11 hearing of the applicability of the Fair Sentencing Act of 2010 (the FSA). Richardson committed the offense on January 18, 2009, when the penalty for his offense was five to forty years in prison. The FSA, which became effective on August 3, 2010, lowered the penalty to not more than twenty years. 21 U.S.C.A. § 841(b)(1)(C) (West Supp. 2011). Richardson believes that the court s failure to inform him the of statutory amendment at the proceeding rendered his plea involuntary. 2 August 16, 2010 plea Because Richardson did not move in the district court to withdraw his plea, we review the Rule 11 hearing for plain error. See United States v. Martinez, 277 F.3d 517, 525-26 (4th Cir. 2002). After carefully reviewing the transcript of the Rule 11 hearing, we discern no such error. We note that the district court correctly advised Richardson that he was subject to a term of imprisonment of five to forty years. Under the Savings Statute, 1 U.S.C. § 109 (2006), a defendant generally is not entitled to application of ameliorative criminal sentencing laws repealing [or amending] harsher ones in force at the time of the commission of the crime. See United States v. Bullard, 645 F.3d 237, 248 (4th Cir. 2011). Thus, Richardson s plea was not rendered involuntary by the failure of the district court to advise him about the FSA. Richardson also argues that his plea was involuntary because the district court did not inquire about his claimed attention deficit hyperactivity disorder (ADHD) or the impact of his having only an eighth grade education on the voluntary and knowing nature of his plea. Richardson did not mention at the hearing that he suffers from ADHD. substantially complied with Rule Further, the district court 11, represented by counsel at the hearing. and Richardson was We conclude that he has not presented credible evidence that his plea was not knowing 3 or otherwise involuntary. See United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). II Both counsel in the Anders brief and Richardson in his pro se brief contend that the 210-month sentence is unreasonable because Richardson did not receive the benefit of the FSA. review a sentence for discretion standard. (2007). applying an abuse-of- Gall v. United States, 552 U.S. 38, 51 both the procedural and substantive reasonableness of the sentence. Id. We first This reasonableness, We review determine requires whether consideration the district of court correctly calculated the defendant s advisory Guidelines range, considered the applicable 18 U.S.C.A. § 3553(a) (West Supp. 2011) factors, analyzed the arguments presented by the sufficiently explained the selected sentence. Lynn, 592 F.3d 572, 575-76 (4th Cir. 2010). free of procedural error, we reasonableness of the sentence. then parties, and United States v. If the sentence is review the substantive Id. Because Richardson did not raise his contention in the district court, our review is for plain error. See id. at 577. Even if the FSA applies retroactively to a defendant, such as Richardson, whose offense occurred prior to the effective date of the FSA, but who was sentenced after that date, Richardson 4 cannot establish plain error: he was sentenced to 210 months in prison within the statutory range established by the FSA; his advisory Guidelines range under both pre-FSA and post-FSA Guidelines is 210-262 months; and he was sentenced at the lowest point of that range. We conclude procedurally nor that the substantively 210-month sentence unreasonable. The is neither sentence, which falls within the properly calculated Guidelines range, is presumptively reasonable, see United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008), and Richardson has not rebutted this presumption. III Finally, Richardson claims in his pro se brief that his attorney was ineffective. To allow for adequate development of the record, a defendant ordinarily must raise a claim of ineffective assistance of counsel in a 28 U.S.C.A. § 2255 (West Supp. 2011) motion unless ineffectiveness conclusively appears on the face of the record. See United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). No such ineffectiveness appears on the record. 5 IV In accordance with Anders, we have reviewed the entire record for meritorious issues and have found none. We therefore affirm. This court requires that counsel inform his client, in writing, of his right to petition United States for further review. the Supreme Court of the If the client 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 was served on the client. oral argument adequately because presented in the the facts and materials We dispense with legal before contentions the court are and argument would not aid the decisional process. AFFIRMED 6
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