US v. Kevin Smith, No. 12-5033 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-5033 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEVIN BERNARD SMITH, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:12-cr-00333-RDB-1) Submitted: July 23, 2013 Decided: July 31, 2013 Before GREGORY and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Michael D. Montemarano, MICHAEL D. MONTEMARANO, PA, Columbia, Maryland, for Appellant. Martin Joseph Clarke, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kevin commit Bernard pled device access Smith fraud, in guilty to conspiracy violation of 18 to U.S.C. § 1029(a)(2), (b)(2) (2006) (Count One), and aggravated identity theft, in violation of 18 U.S.C. § 1028A (2006) (Count Three), and the district court sentenced him imprisonment of sixty-five months. to a total term of On appeal, counsel for Smith filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting appeal but assistance that there questioning of are no whether counsel at meritorious Smith sentencing. received Smith issues for ineffective has filed a supplemental pro se brief arguing that the statement of facts submitted factual at his basis plea for hearing his was guilty insufficient pleas, to rendering provide his pleas involuntary and constructively amending the indictment. also claims that counsel rendered advising him to plead guilty. Prior to accepting ineffective a Smith assistance in We affirm. a guilty plea, a trial court, through colloquy with the defendant, must inform the defendant of, and determine that the defendant understands, the nature of the charges to which the plea is offered, any mandatory minimum penalty, the maximum possible penalty he faces, and the various rights he is relinquishing by pleading guilty. 11(b)(1). The district court 2 also must Fed. R. Crim. P. ensure that the defendant s plea was voluntary, was supported by a sufficient factual basis, and did not result from force or threats. Fed. R. Crim. P. 11(b)(2), (3); see United States v. Carr, 271 F.3d 172, 178 n.6 (4th Cir. 2001) ( The court must satisfy itself that all the elements of the charged offense[s] were committed. ). In reviewing the adequacy of compliance with Rule [c]ourt 11, this should accord deference to the trial court s decision as to how best to conduct the mandated colloquy with the defendant. United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). Because Smith did not move the district court to withdraw his guilty plea, any errors in the plea hearing are reviewed for plain error. United States v. Martinez, 277 F.3d 517, 525-26 (4th Cir. 2002). To establish plain error, [Smith] must show that an error occurred, that the error was plain, and that the error affected his substantial rights. United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Even if Smith satisfies these requirements, we retain discretion to correct the error, which we should not exercise . . . unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings. brackets omitted). Our Id. (internal quotation marks and review of the record leads us to conclude that the facts proffered by the parties during the plea 3 colloquy were sufficient to support Smith s pleas of guilty and did not constructively amend the indictment. Smith assistance in sentencing. any also avers that with connection counsel his rendered guilty ineffective pleas and his However, the record does not conclusively establish deficient performance of counsel. See United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008) (providing standard); United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). We therefore conclude that the ineffective assistance claims are not cognizable on direct appeal. Rather, to permit adequate development of the record, Smith must pursue such claims, if at all, in an appropriate proceeding for post-conviction relief. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore decline to consider Smith s claims of ineffective assistance of counsel and affirm the district court s judgment. This court requires that counsel inform Smith, in writing, of the right to petition the Supreme Court of the United States for further review. If Smith requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court 4 for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Smith. 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 5
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