United States v. Mosby , 213 F. App'x 192 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4909
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DERRICK MOSBY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (CR-05-124)
Submitted: November 30, 2006 Decided: January 18, 2007
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard L. Cannon, III, CANNON & TAYLOR, LLP, Greenville, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Lisa B. Boggs, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Mosby pled guilty pursuant to a plea agreement to
possession with intent to distribute 51.1 grams of cocaine base, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) (2000). The district
court sentenced Mosby to 186 months’ imprisonment, below the 210 to
262 month sentencing guidelines range. Finding no error, we
affirm.
Mosby’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), contending there exist no
meritorious issues for appeal but seeking review of a two-level
enhancement to Mosby’s offense level for possession of a dangerous
weapon, pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
§ 2D1.1(b)(1) (2004). Because Mosby did not object to this
sentencing enhancement in the district court, we review for plain
error. See Fed. R. Crim. P. 52(b); see also United States v.
Olano, 507 U.S. 725, 733-37 (1993).
We conclude there was no plain error. The § 2D1.1(b)(1)
enhancement was based on Mosby’s possession of a shotgun during a
drug transaction with a confidential informant and uncover officer.
Although this incident formed the basis to a charge against Mosby
that was dismissed pursuant to his plea agreement, it was properly
considered by the district court pursuant to the court’s mandate to
consider the broad context of a defendant’s relevant conduct. See
United States v. Watts, 519 U.S. 148, 152 (1997); see also United
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States v. Williams, 880 F.2d 804, 805 (4th Cir. 1989) (holding
conduct charged in dismissed counts may be considered in the
sentence calculation if it qualifies as relevant conduct under USSG
§ 1B1.3).
Mosby filed a pro se supplemental brief, raising several
issues. First, Mosby claims his guilty plea was invalid for the
district court’s alleged failure to advise him of his right against
self-incrimination and because his counsel purportedly entered his
guilty plea for him. Because Mosby did not move in the district
court to withdraw his guilty plea, his challenge to the adequacy of
the Rule 11 hearing is reviewed for plain error. See United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Based on a
thorough review of the materials before the court, including the
guilty plea transcript, we find no plain error in the district
court’s guilty plea hearing.
Next, Mosby contends the district court improperly
applied criminal history points to his state court misdemeanor
convictions for disorderly conduct and possession of a controlled
dangerous substance, because he received probation before judgment
in both instances. This contention is meritless. The presentence
report indicates Mosby was found guilty of both offenses.
Therefore, both judicial proceedings are counted as sentences under
USSG § 4A1.1(c), even if the convictions were not formally entered.
See USSG § 4A1.2(f).
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Mosby also asserts the district court failed to conduct
a sufficient review of the 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2006) factors prior to imposing sentence. After United States v.
Booker, 543 U.S. 220 (2005), this court reviews a sentence “for
unreasonableness.” Booker, 543 U.S. at 261; United States v.
Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). District courts must
calculate the appropriate guideline range, consider the range in
conjunction with other relevant factors under the guidelines and §
3553(a), and impose a sentence. United States v. Green, 436 F.3d
449, 455-56 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).
However, a district court need not “robotically tick through
§ 3553(a)’s every subsection.” United States v. Johnson, 445 F.3d
339, 345 (4th Cir. 2006). We find no error in the district court’s
sentencing hearing.
Finally, Mosby alleges he received ineffective assistance
of counsel from both his trial and appellate attorneys. Generally,
claims of ineffective assistance of counsel must be brought in a
collateral proceeding under 28 U.S.C. § 2255 (2000), unless it
conclusively appears from the face of the record that counsel was
ineffective. United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir.), cert. denied, 126 S. Ct. 1407 (2006). Because the alleged
instances of ineffective assistance do not conclusively appear on
the face of the record, we conclude these claims are not cognizable
on direct appeal.
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In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm Mosby’s conviction and sentence. This court
requires that counsel inform his client, in writing, of his right
to petition the Supreme Court of the United States for further
review. If the client 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 the client. 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
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