United States v. Lane , 114 F. App'x 543 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4181
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTOINE DARNELL LANE,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CR-02-35)
Submitted: September 24, 2004 Decided: November 4, 2004
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eric S. Black, TRUMP & TRUMP, L.C., Martinsburg, West Virginia, for
Appellant. Thomas E. Johnston, United States Attorney, Thomas O.
Mucklow, Assistant United States Attorney, Martinsburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Antoine Darnell Lane appeals from his conviction and one
hundred ninety-two month sentence imposed following his guilty plea
to conspiracy to possess with intent to distribute more than fifty
grams of crack cocaine and six substantive offenses of distribution
or possession with intent to distribute. Lane’s counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967),
stating that there are no meritorious issues for appeal, but
asserting that Lane’s guilty plea was not knowingly and voluntarily
entered and that Lane received ineffective assistance of counsel
with respect to the plea. Lane was informed of his right to file
a pro se brief, but has not done so. Because our review of the
record discloses no reversible error, we affirm Lane’s conviction
and sentence.1
During the plea hearing pursuant to Fed. R. Crim. P. 11,
the district court did not establish the existence of a factual
basis for the plea. However, because the court “may conclude that
a factual basis exists from anything that appears on the record”
and the record before the district court sufficiently provided a
1
Lane has filed a notice of supplemental authorities pursuant
to Fed. R. App. P. 28(j), seeking to challenge his sentence under
Blakely v. Washington, 124 S. Ct. 2531 (2004). In light of the
opinion issued by the en banc court in United States v. Hammoud, __
F.3d ___, 2004 WL 2005622 (4th Cir. Sept. 8, 2004); United
States v. Hammoud, 378 F.3d 426 (4th Cir. 2004) (order), petition
for cert. filed, __ U.S.L.W. __ (U.S. Aug. 6, 2004) (No. 04-193),
we find no Blakely error in Lane’s sentence.
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factual basis for the plea, United States v. DeFusco, 949 F.2d 114,
120 (4th Cir. 1991), we find no error, much less plain error by the
district court. See United States v. Martinez, 277 F.3d 517, 525
(4th Cir. 2002) (providing standard).
Also during the plea colloquy, the district court failed
to inform Lane that he would be sentenced to a term of supervised
release and to explain the effect of supervised release. Under
Fed. R. Crim. P. 11(h), a conviction must be vacated only if the
Rule 11 violation affected the defendant’s substantial rights.
United States v. Good, 25 F.3d 218, 220 (4th Cir. 1994) (citing
DeFusco, 949 F.2d at 117). While a court’s failure to discuss the
nature of supervised release is error, it is deemed harmless if the
defendant’s combined sentence of incarceration and supervised
release is less than the maximum term he was told he could receive.
Id. (citing Moore v. United States, 592 F.2d 753, 756 (4th Cir.
1979)).
Here, the district court’s failure to inform Lane of the
effects of supervised release was harmless because Lane’s combined
sentence was less than the maximum sentence he was told he could
receive. Lane received a 192-month sentence of incarceration
followed by three years of supervised release, resulting in a
combined sentence of 228 months or nineteen years. That sentence
is far less than the maximum possible sentence of life imprisonment
that the district court told Lane he could receive for the
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conspiracy offense to which Lane pled guilty. Accordingly, we find
that the district court’s failure to advise Lane of the fact and
effect of supervised release was harmless. See Good, 25 F.3d at
220; Moore, 592 F.2d at 756.
In all other respects, the district court properly
advised Lane of the consequences of his guilty plea, and Lane’s
plea was knowingly and voluntarily entered. Thus, we affirm Lane’s
convictions. See North Carolina v. Alford, 400 U.S. 25, 31 (1970);
DeFusco, 949 F.2d at 119-20.
Lane contends that counsel was ineffective when advising
him to plead guilty without the benefit of a plea agreement.
Because it does not conclusively appear from the record that
counsel rendered ineffective assistance, we decline to address this
claim. See United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999) (providing standard and noting that ineffective
assistance of counsel claims generally should be raised by motion
under 28 U.S.C. § 2255 (2000)).
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm Lane’s conviction and sentence.2 This court requires that
2
We note that Lane’s Judgment Order states that his conviction
for the offense charged in Count 11 was for possession with intent
to distribute crack cocaine. However, with respect to Count 11,
Lane was charged with, and pled guilty to, an offense involving
marijuana. This typographical error may be corrected by the
district court pursuant to Fed. R. Crim. P. 36.
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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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