United States v. Gaines , 239 F. App'x 812 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5269
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SYLEST ALI GAINES, a/k/a Jerold M. Lee,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:06-cr-00392-HFF)
Submitted: June 22, 2007 Decided: July 12, 2007
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Maxwell Barnes Cauthen, III, OFFICE
OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sylest Ali Gaines pled guilty pursuant to a plea
agreement to one count of possession of a firearm by a felon, one
count of possession of a stolen firearm, and one count of
possession with intent to distribute cocaine and marijuana, in
violation of 18 U.S.C. §§ 922(g), (j); 924(a)(2), (e); 21 U.S.C.
§ 841(a)(1), (b)(1)(C), (b)(1)(D) (2000). Gaines was sentenced by
the district court to a total of 168 months’ imprisonment. Finding
no error, we affirm.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there were no
meritorious grounds for appeal, but questioning whether the
district court fully complied with the requirements of Fed. R.
Crim. P. 11. Gaines filed a pro se supplemental brief, contending
the district court erred in its application of the Sentencing
Guidelines, the Government breached the terms of the plea
agreement, and his counsel provided ineffective assistance. The
Government elected not to file a responsive brief.
Because Gaines did not seek to withdraw his guilty plea
in the district court, we review any alleged Rule 11 error for
plain error. United States v. Martinez, 277 F.3d 517, 524-26 (4th
Cir. 2002). To establish plain error, Gaines must show that an
error occurred, that the error was plain, and that the error
affected his substantial rights. United States v. White, 405 F.3d
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208, 215 (4th Cir. 2005). We have reviewed the record and find no
error.
Gaines next contends that the district court erred in its
application of the Sentencing Guidelines. When reviewing the
district court’s application of the Sentencing Guidelines, we
review findings of fact for clear error and questions of law de
novo. United States v. Green, 436 F.3d 449, 456 (4th Cir.), cert.
denied, 126 S. Ct. 2309 (2006).
Initially, Gaines argues that he does not satisfy the
criteria for enhancement as a career offender. As Gaines was over
eighteen years old at the time he committed the instant controlled
substance offense, and was previously convicted of assault on an
officer while resisting arrest and possession of cocaine with
intent to distribute, we conclude Gaines was appropriately
sentenced by the district court as a career offender. Gaines also
argues that the court erred in determining his criminal history
category. However, because Gaines was a career offender, his
placement in category VI was required by U.S. Sentencing Guidelines
Manual § 4B1.1(b) (2005).
Next, Gaines contends that the Government breached the
terms of the plea agreement by making a sentencing recommendation
to the court. “[W]hen a plea rests in any significant degree on a
promise or agreement of the prosecutor, so that it can be said to
be part of the inducement or consideration, such promise must be
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fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971). “It
is well-established that the interpretation of plea agreements is
rooted in contract law, and that ‘each party should receive the
benefit of its bargain.’” United States v. Peglera, 33 F.3d 412,
413 (4th Cir. 1994) (quoting United States v. Ringling, 988 F.2d
504, 506 (4th Cir. 1993)). “A central tenet of contract law is
that no party is obligated to provide more than is specified in the
agreement itself.” Id.
Accordingly, “the government’s duty in carrying out its
obligations under a plea agreement is no greater than that of
‘fidelity to the agreement.’” Id. (quoting United States v.
Fentress, 792 F.2d 461, 464 (4th Cir. 1986)). As the agreement is
silent on the issue of sentencing recommendations, we conclude
Gaines cannot establish that the Government breached the plea
agreement. See United States v. Snow, 234 F.3d 187, 189 (4th Cir.
2000) (“It is settled that a defendant alleging the Government’s
breach of a plea agreement bears the burden of establishing that
breach by a preponderance of the evidence.”).
Gaines finally contends that his counsel was ineffective
for failing to object to the plea agreement and presentence report.
An ineffective assistance of counsel claim is generally not
cognizable on direct appeal, but should instead be asserted in a
post-conviction motion under 28 U.S.C. § 2255 (2000). See United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). However,
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we have recognized an exception to the general rule when “it
‘conclusively appears’ from the record that defense counsel did not
provide effective representation.” Id. (quoting United States v.
Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994)). Because the record
does not conclusively establish that counsel was ineffective, we
conclude Gaines’s claim is not cognizable on appeal.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm the judgment of the district court.
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 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 in the
decisional process.
AFFIRMED
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