US v. Malik Foreman, No. 12-4473 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4473 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MALIK JAMAL FOREMAN, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Malcolm J. Howard, Senior District Judge. (2:10-cr-00026-H-1) Submitted: January 31, 2013 Decided: March 21, 2013 Before MOTZ, GREGORY, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Joseph A. DiRuzzo, III, FUERST ITTLEMAN DAVID & JOSEPH, PL, Miami, Florida, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Malik Jamal Foreman pleaded guilty to distribution of more than fifty grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006). His attorney has filed an Anders v. California, 386 U.S. 738 (1967), brief stating that there are no meritorious issues for appeal, but questioning whether the sentence was reasonable. Foreman filed a pro se supplemental brief on claiming ineffective counsel in filing a his motion first to instead of filing a merits brief. assistance of sentencing errors amount that counsel was at from not remand first for was resentencing failing sentencing, corroborated and the U.S.C. § 851 (2006) to his sentence. filed a brief. for appeal He also alleges ineffective re-sentencing the direct to argue including application drug of 21 The Government has not We affirm. Foreman s first appeal was remanded by this court and the sentence Sentencing vacated Act (FSA) Foreman s sentence. FSA retroactively, under 21 Guidelines U.S.C. range recommendations § 3553(a) (2006) for consideration should be of whether retroactively the Fair applicable to On remand, the district court applied the and, applying §§ 841, 851 to from the (2006), sentencing found be 121-151 months. the parties, reviewing factors, and discussing 2 the enhancements Sentencing After the 18 Foreman s hearing U.S.C. criminal history, the court imposed a 132-month sentence. The court found that a mid-range sentence capture[d] the aggravating and the mitigating sentencing factors. Although he offers no specific claims of error, counsel questions whether Foreman s sentence is procedurally and substantively reasonable. deferential abuse of This court reviews a sentence under a discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). The first step in this review requires the the court to inspect sentence for procedural reasonableness by ensuring that the district court committed no significant the procedural Guidelines errors, range, failing as to consider U.S.C. See United States v. Boulware, 604 F.3d 832, 837-38 A reviewing adequately 18 sentence. 2010). to the calculating factors, Cir. failing improperly § 3553(a) (4th or such court then explain considers the the substantive reasonableness of the sentence imposed, taking into account the totality of the circumstances. 51. Gall, 552 U.S. at If the sentence is within the Guidelines range, this court presumes on appeal that the sentence is reasonable. United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see Rita v. United States, 551 U.S. 338, 346-56 (2007) (permitting appellate presumption of reasonableness for within-Guidelines sentence). Here, the district court properly calculated Foreman s Guidelines sentence and then imposed 3 a sentence within the Guidelines range. Neither party objected to the Guidelines range, and the court provided sufficient reasoning supporting its decision. Specifically, the district court noted Foreman s criminal history and continued return to drug trafficking even after serving a ten year sentence. The district court imposed a sentence at the middle of the Guidelines range of 132 months. We conclude that the court set forth a sufficiently developed rationale to support the sentence, and there was no procedural error. Regarding the substantive reasonableness of Foreman s sentence, the district court s imposition of a sentence within the Guidelines range is presumptively reasonable and Foreman has not rebutted that presumption. We have reviewed the issues Foreman raised in his pro se supplemental brief and conclude that they are without merit. Foreman raised ineffective assistance of counsel of his first appellate attorney because he filed a motion to remand for re-sentencing in light of the FSA instead of raising sentencing errors at the first misunderstanding Because this of court sentencing. the appellate vacated the This and claim is based re-sentencing sentence and on a process. remanded, the sentencing process began anew. Next, Foreman contends that he did not receive effective assistance of counsel when counsel at re-sentencing did not object to the drug quantity 4 used to calculate his sentence or the application of the increased mandatory minimum under § 851. Claims of ineffective assistance generally are not cognizable on direct appeal. King, 119 F.3d 290, 295 (4th Cir. 1997). of counsel United States v. Rather, to allow for adequate development of the record, a defendant generally must bring his claims in a 28 U.S.C.A. § 2255 (West Supp. 2012) motion. Id.; United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). However, ineffective assistance claims are cognizable on direct appeal if the record conclusively establishes ineffective assistance. United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). To must show demonstrate that his ineffective counsel s assistance, representation a defendant fell below an objective standard of reasonableness, and that the error was prejudicial to the defense such that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 692, 694 (1984). First, as to drug quantity, at the first sentencing hearing counsel objected to the quantity attributed based on uncorroborated testimony from one witness and videotape of one controlled buy that Foreman participated in and was the subject of the count to which he pled guilty. confirms that the Government Our review of the record established 5 the relevant drug quantity by a preponderance of the evidence. We therefore conclude that the district court s assessment was not error and either reviewed on the merits or as an ineffective assistance of counsel claim, the claim fails. Next, Foreman argues that he should not have been subject to the § 851 enhancement because the prosecutor acted arbitrarily in filing the information after Foreman refused to plead guilty to the conspiracy count and the Government subsequently dismissed the count before discovery was completed. Presumption of prosecutorial vindictiveness is not warranted in this case where there was no actual evidence of vindictiveness and absent such a presumption of vindictiveness no due process violation can be established. U.S. 368, 380-84 (1982). denying this objection United States v. Goodwin, 457 The court therefore did not err in at the first sentencing hearing and Foreman would be unable to demonstrate prejudice from the record before the court on an ineffective assistance claim. Finally, Foreman alleged that he did not have a predicate conviction under § 851 after this court decided United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (holding that consideration of hypothetical aggravating factors and criminal history is inappropriate when determining whether prior offense constitutes felony) and counsel was ineffective for failing to raise this objection at the re-sentencing hearing. 6 Simmons had been pending on appeal during Foreman s first sentencing. His sentence was enhanced based on a 2000 conviction in New York State for attempted substance-third degree. criminal Foreman sale of received a a controlled sentence of six months of custody-suspended and one year of probation. Under New York law, criminal sale of a substance in the third degree is a class B felony. Law § 220.39 (McKinney 2006). felony is a class C felony. 2006). controlled N.Y. Penal An attempt to commit a class B N.Y. Penal Law § 110.05 (McKinney A class C felony is punishable by a maximum of fifteen years of imprisonment and a minimum of one year. §§ 70.00, 70.70 At his N.Y. Penal Law (McKinney 2007). initial sentencing, counsel objected to the offense qualifying as a predicate felony because Foreman did not receive an imprisonment term of a year or more. However, Foreman s attempt to sell a controlled substance was punishable by one year or more of imprisonment, and thus was a qualifying predicate for career offender sentencing. Although the penal code permits a first time offender convicted of a class C felony to receive as little as a parole supervision sentence, Foreman could have received a sentence of up to fifteen years. See N.Y. Penal Simmons, Law §§ 70.00, 70.70. Therefore, even after Foreman s conviction may qualify as a predicate offense. We note, however, that the information in the PSR is very limited 7 about the conviction. the conviction no Nonetheless, we conclude, that even if longer qualifies under § 851, there is no indication in the record that the district court s sentencing decision was affected by the enhanced statutory minimum sentence of 120 months. the statutory sentence The lowest end of the Guidelines range exceeded minimum Foreman in and the the court mid-range, expressed and its desire subsequently did to so. Therefore, any procedural sentencing error would be harmless. See United States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir.), cert. denied, 132 S. Ct 454 (2011) (holding procedural error is harmless where the court would have reached the same result had the Guidelines issue been decided the other way and the sentence imposed would be reasonable even if contested issue decided in defendant s favor). the Court, Foreman s claims Therefore, on the record before related to the § 851 enhanced minimum fail both directly on the merits and as an ineffective assistance claim. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Foreman s conviction and sentence. This court requires that counsel inform Foreman, in writing, of the right to petition the Supreme Court of the United States for further review. If Foreman requests that a petition be filed, but counsel believes that such a petition would be frivolous, 8 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 Foreman. We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 9