US v. Marcus Brooks, No. 12-4379 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4379 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARCUS L. BROOKS, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:11-cr-00041-FPS-JES-1) Submitted: November 20, 2012 Decided: November 27, 2012 Before MOTZ, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Franklin W. Lash, Wheeling, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Randolph J. Bernard, John C. Parr, Assistant United States Attorneys, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Following his guilty plea to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2)(2006), the district court sentenced Marcus L. Brooks to 108 months imprisonment and a three-year term of supervised release. This appeal timely followed. In his brief, Brooks challenges the district court s rulings on his motion to suppress the firearm seized subsequent to his arrest and his motion alleging that the Government violated Jencks v. United States, 353 U.S. 657 (1957), by either failing to turn over impeachment evidence or tampering with that evidence. Brooks also appeals his sentence, arguing that his 1993 federal narcotics conviction, for which he was sentenced to seventy months determining his imprisonment, criminal was history improperly score. For counted the in following reasons, we affirm. In response to Brooks arguments related to the preplea motions to suppress and for relief based on the alleged Jencks violation, the Government asserts that, by pleading guilty without entering a conditional guilty plea pursuant to Fed. R. Crim. P. 11(a)(2), Brooks waived his right to challenge the district court s rulings on these motions. valid, counseled guilty plea waives all We agree. A antecedent, nonjurisdictional defects not logically inconsistent with the 2 valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established. Menna v. New York, 423 U.S. 61, 62 n.2 (1975); see Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States v. Moussaoui, 591 F.3d 263, 279 (4th Cir. 2010) ( [T]he defendant who has pled guilty has no non-jurisdictional ground upon which to attack that judgment except the inadequacy of the plea or the government s power to bring any indictment at all. (internal quotation marks and citation omitted)). did not preserve these enter the a conditional right motions. to And guilty appeal our the review It is clear that Brooks plea; court s of the thus, he adverse record did rulings confirms Brooks guilty plea was counseled, knowing, and voluntary. accordingly conclude that Brooks guilty not plea on that We forecloses appellate review of the pre-plea constitutional and evidentiary violations alleged in his brief. We also reject Brooks challenge to court s calculation of his criminal history score. the district We review a defendant s sentence for reasonableness, applying an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Horton, 693 F.3d 463, 472 (4th Cir. 2012). In reviewing the district court s application of the Sentencing Guidelines, we review findings of fact for clear error and questions of law de novo. 3 Horton, 693 F.3d at 474. A defendant receives three criminal history points for a prior sentence that exceeded one was imposed within imprisonment that defendant s commencement of the year and fifteen instant one month years of offense. of the U.S. Sentencing Guidelines Manual ( USSG ) § 4A1.2(e)(1) (2011); see USSG § 4A1.1(a). imposed, during that any § 4A1.2(e)(1). that, within incarcerated Also counted is any such sentence, whenever resulted part of The the in the such defendant fifteen-year unrefuted to the look-back report period, seventy-month following his federal narcotics conviction. incarcerated period. presentence fifteen-year pursuant being USSG establishes Brooks sentence was imposed We thus discern no error in the district court s assignment of criminal history points to this sentence. For these reasons, we affirm the criminal judgment. We deny Brooks motion for leave to file a pro se supplemental brief. Because he is represented by court-appointed counsel who has filed a brief on the merits, not pursuant to Anders v. California, 386 U.S. 738 (1967), Brooks is not entitled to file a pro se supplemental brief. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 4
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