United States v. Frank Leon Robinson ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4806
FRANK LEON ROBINSON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Aiken.
Joseph F. Anderson, Jr., District Judge.
(CR-98-523)
Submitted: June 30, 2000
Decided: July 24, 2000
Before WILKINS and KING, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
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Affirmed in part and dismissed in part by unpublished per curiam
opinion.
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COUNSEL
Allen B. Burnside, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Jane Barrett Taylor, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Frank L. Robinson appeals his conviction entered on his guilty plea
to possession with intent to distribute crack cocaine in violation of 21
U.S.C. § 841(a)(1) (1994). Robinson noted a timely appeal and his
counsel filed a brief pursuant to Anders v. California, 386 U.S. 738,
744 (1967), in which he represents that there are no arguable issues
of merit in this appeal. Nonetheless, in his brief, counsel addressed
the possibility that the district court erred in sentencing Robinson as
a career offender. See USSG § 4B1.1. Counsel also suggested that the
district court erred in declining to depart downward based on Robin-
son's physical limitations. See USSG § 5H1.4. Robinson filed a sup-
plemental brief in which he contends that the district court erred in
denying Robinson's motion to appoint replacement counsel and
advancing numerous claims of ineffective assistance of counsel. See
Strickland v. Washington, 466 U.S. 668, 688 (1984). Finding no
reversible error, we affirm Robinson's conviction and sentence. To
the extent that Robinson challenges the district court's decision not to
grant a downward departure, the appeal is dismissed.
Robinson first suggests that the district court erred in sentencing
Robinson as a career offender under USSG § 4B1.1. Robinson con-
tends that the district court should not have counted his 1981 South
Carolina housebreaking conviction as a predicate"crime of violence"
under § 4B1.2(a)(2). Cf. S.C. Code Ann. § 16 11-320 (Law. Co-op.
1985) (repealed 1985).* However, the determinative issue is whether
there is a substantial risk that physical force may be used not whether
the offense is described as burglary or house breaking. See United
States v. Raynor, 939 F.2d 191, 196 (4th Cir. 1991). That substantial
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*In 1985, the South Carolina Legislature amended the state's defini-
tion of burglary to include breaking and entering a dwelling during the
day. See S.C. Code Ann. § 16-11-310 (Law. Co-op. Supp. 1999).
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risk arises when, as in Robinson's case, the defendant is convicted of
breaking into a building that is used as a dwelling. See id. Accord-
ingly, Robinson's housebreaking conviction is properly described as
a "crime of violence" for the purposes of§ 4B1.1. The district court
did not err in sentencing Robinson as a career offender.
Counsel also suggests that the district court's refusal to depart from
the Sentencing Guidelines range in recognition of Robinson's physi-
cal disability was error. A district court's decision not to depart from
the Guidelines is not subject to appellate review unless the court's
decision is based on the mistaken belief that it lacked the authority to
depart. See United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.
1990). The record establishes that the court fully considered Robin-
son's assertions regarding his physical limitations but nonetheless
found that Robinson's impairments were not "extraordinary" and did
not warrant a departure from the Guidelines range. See USSG
§ 5H1.4. The court's decision is not subject to appellate review. That
portion of the appeal will be dismissed.
In his pro se supplemental brief, Robinson contends that the district
court abused its discretion in denying his motion for substitution of
counsel. See United States v. Gallop, 838 F.2d 105, 108 (4th Cir.
1988). Our review of the record, including the transcript of the hear-
ing on the motion and the district court's order denying Robinson's
request, reveals no abuse of the court's discretion. See id. Robinson
also suggests that his counsel did not provide him with constitution-
ally adequate assistance. See Strickland, 466 U.S. at 688. However,
a claim of ineffective assistance of counsel is only appropriate on
direct appeal where counsel's ineffectiveness is apparent from the
face of the record. See United States v. Williams, 977 F.2d 866, 871
(4th Cir. 1992). Because there is no error of this magnitude discern-
ible from the record, we note that Robinson's allegations are better
suited for a motion under 28 U.S.C.A. § 2255 (West Supp. 2000). See
United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991).
As required by Anders, we have independently reviewed the entire
record and all pertinent documents. We have considered all possible
issues presented by this record and conclude that there are no non-
frivolous grounds for this appeal. Pursuant to the plan adopted by the
Forth Circuit Judicial Council in implementation of the Criminal Jus-
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tice Act of 1964, 18 U.S.C. § 3006A (1994), this court requires that
counsel inform his client, in writing, of his right to petition the
Supreme Court for further review. If requested by the client to do so,
counsel should prepare a timely petition for writ of certiorari, unless
counsel believes that such a petition would be frivolous. In that case,
counsel may move in this court for leave to withdraw from represen-
tation. Counsel's motion must state that a copy thereof was served on
the client.
Robinson's conviction and sentence are affirmed. The portion of
this appeal challenging the district court's decision not to grant a
downward departure is dismissed. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED IN PART, DISMISSED IN PART
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