US v. Gary Baldwin, No. 12-4482 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4482 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GARY DEAN BALDWIN, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, District Judge. (1:09-cr-00043-JPJ-3) Submitted: January 10, 2013 Decided: January 25, 2013 Before NIEMEYER, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Eric C. Bohnet, ERIC C. BOHNET, ATTORNEY AT LAW, Indianapolis, Indiana, for Appellant. Jean Barrett Hudson, Assistant United States Attorney, Charlottesville, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gary Dean Baldwin pled guilty without a plea agreement to conspiracy to distribute and to possess with intent to distribute oxycodone, in violation of 21 U.S.C. § 846 (2006), and was sentenced appeal, counsel to has California, 386 meritorious issues eighty-seven filed U.S. 738 for a months brief (1967), appeal pursuant stating but imprisonment. to that Anders there questioning are whether On v. no the district court plainly erred by entering an amended judgment without allowing Baldwin to challenge drug quantity or to present evidence of trial counsel s alleged nondisclosure of a plea agreement. which he raises sentence. Baldwin filed pro se supplemental briefs, in several challenges to his conviction and Finding no error, we affirm. Turning first to the issues presented in counsel s Anders brief, we note that the sole issue before the district court during the evidentiary hearing on Baldwin s 28 U.S.C.A. § 2255 (West Supp. 2012) motion was whether counsel rendered ineffective assistance by failing to consult with Baldwin about whether he wished to appeal. Accordingly, the district court did amended not err undisputed by entering an drug quantity and without judgment based providing on Baldwin the an opportunity to present evidence regarding nondisclosure of an alleged plea agreement. See United States v. Prado, 204 F.3d 2 843, 845 (8th Cir. 2000) (rejecting argument that defendant was entitled to de novo resentencing after court vacated reentered judgment to provide opportunity to appeal). and Moreover, issues regarding objections to the drug quantity attributable to Baldwin and an allegedly undisclosed plea agreement are better characterized as ineffective assistance of counsel claims at this juncture and, because neither party has had an opportunity to fully develop addressed in a the record, § 2255 those motion Baldwin s direct appeal. claims following would the be better completion of See United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010); United States v. Benton, 523 F.3d 424, ineffective 435 (4th Cir. assistance 2008) claims (providing raised on standard direct for appeal). Accordingly, we decline to consider these issues here. We turn next to the issues raised in Baldwin s pro se supplemental briefs. Baldwin argues that he did not knowingly and voluntarily enter his plea because he was not aware that he would be sentenced to more than thirty-six months imprisonment and because he was induced to enter his plea by trial counsel s promise to appeal. Our review of the transcript of the Fed. R. Crim. P. 11 proceeding discloses that Baldwin entered his plea knowingly and voluntarily. During Baldwin s plea colloquy, he indicated that he understood the maximum penalty for the offense was twenty years imprisonment and affirmatively stated that no 3 one had made him any promises to induce him to enter his plea. Baldwin has failed to present compelling evidence to rebut the truth of [these] colloquy. sworn statements made during [his] Rule 11 United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005). Apart from counsel s failure to object to the drug quantity attributed to him, Baldwin argues that the court did not correctly calculate the drug quantity. Because Baldwin failed to object to the district court s calculation of drug quantity at sentencing, his claim is reviewed for plain error. United States v. Blatstein, 482 F.3d 725, 731 (4th Cir. 2007). The district court may accept any undisputed portion of the presentence report as a finding of fact. 32(i)(3)(A). Fed. R. Crim. P. Moreover, even if a defendant objects to a finding in the presentence report, in the absence of an affirmative showing the adopt the information findings of is the inaccurate, presentence specific inquiry or explanation. F.3d 595, 606 (4th brackets omitted). quantities Cir. the 1998) court report is free without to more United States v. Love, 134 (internal quotation marks and Here, there were no objections to the drug attributed to Baldwin, much less any affirmative showing that the information in the presentence report was not accurate. We therefore conclude that the district court did not err, plainly or otherwise, by relying on the undisputed facts in 4 the presentence report to determine the drug quantity attributed to Baldwin. Baldwin next argues that his sentence is substantively unreasonable. whether This court reviews the district court s sentence, inside, just outside, under a or significantly deferential outside Guidelines range[,] standard. Gall v. United States, 552 U.S. 38, 41 (2007). the abuse-of-discretion When reviewing a sentence for substantive reasonableness, this court examines the totality of sentence is within the applies a presumption substantively reasonable. F.3d 212, rebutted 216-17 only unreasonable United States if (4th the when v. the circumstances, Guidelines on the appeal that Cir. 2010). defendant Such shows against that the 445 § Baldwin s addiction to range, sentence F.3d is clear oxycodone that by a is presumption the sentence 3553(a) 375, 2006) (internal quotation marks omitted). it the United States v. Mendoza-Mendoza, 597 Montes-Pineda, assertion, if properly-calculated measured Baldwin s and, the 379 is is factors. (4th Cir. Here, contrary to court ordering as considered a special condition of release that he attend substance abuse counseling. Accordingly, we conclude that Baldwin has provided no evidence to rebut the presumption that his within-Guidelines sentence is substantively reasonable. 5 Finally, Baldwin argues rendered ineffective assistance brief. Such appeal. Benton, 523 F.3d at 435. claims are not by that appellate failing generally to file cognizable counsel a merits on direct Because the record does not establish that appellate counsel was ineffective, we will not review Baldwin s claim at this juncture. See Baptiste, 596 F.3d at 216 n.1; see also Jones v. Barnes, 463 U.S. 745, 754 (1983) (holding that appellate counsel need not raise on appeal every non-frivolous issue suggested by defendant). 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 amended judgment. This court requires that counsel inform Baldwin, in writing, of the right to petition the Supreme Court of the United States for further review. If Baldwin 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 thereof was served on Baldwin. 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 6
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