United States v. Kelvin Snead , 546 F. App'x 217 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4031
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KELVIN SNEAD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:12-cr-00063-H-2)
Submitted: October 18, 2013 Decided: November 14, 2013
Before MOTZ, SHEDD, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Jude Darrow, LAW OFFICE OF MARY JUDE DARROW, Raleigh, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kelvin Snead appeals the 156-month sentence imposed by
the district court. Snead pleaded guilty to conspiracy to
distribute and possess with intent to distribute 5 kilograms or
more of cocaine, 280 grams or more of cocaine base, and 1000
kilograms or more of marijuana, in violation of 21 U.S.C. § 846.
Snead’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there are no
meritorious grounds for appeal after having reviewed the
validity of the plea and sentencing proceedings. Snead has
supplemented his appellate counsel’s brief by challenging the
inclusion of a 2007 state conviction for possession of marijuana
in his criminal history, arguing that the drug quantity
attributed to him was excessive, and alleging that his counsel
was ineffective. 1 For the reasons that follow, we affirm.
I.
We first address Snead’s plea. Prior to accepting a
guilty plea, a trial court must directly inform the defendant
of, and ensure that the defendant understands: (1) the nature of
1
To the extent that Snead also challenges the district
court’s compliance with Fed. R. Crim. P. 32(i)(1)(A) and the
Government’s failure to file a Fed. R. Crim. P. 35(b) motion, we
conclude these claims lack merit.
2
the charges against him for which the plea is being offered; (2)
any mandatory minimum penalty; (3) the maximum possible penalty;
and (4) the various rights he is relinquishing by pleading
guilty. See Fed. R. Crim. P. 11(b)(1). The district court must
also ensure that the defendant’s plea was voluntary, supported
by a sufficient factual basis, and not the result of force,
threats, or promises not contained in the plea agreement. See
Fed. R. Crim. P. 11(b)(2), (3). “In reviewing the adequacy of
compliance with Rule 11, this Court 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).
Snead did not move to withdraw his guilty plea in the
district court or raise any objections during the Rule 11
colloquy. Thus, we review the plea colloquy for plain error.
See United States v. General, 278 F.3d 389, 393 (4th Cir. 2002).
To demonstrate plain error, a defendant must show that: (1)
there was an error; (2) the error was plain; and (3) the error
affected his “substantial rights.” United States v. Olano, 507
U.S. 725, 732 (1993). Upon a thorough review of the record, we
conclude that the district court fully complied with Rule 11 and
ensured that Snead’s plea was knowing and voluntary and
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supported by a sufficient factual basis. 2 See DeFusco, 949 F.2d
at 116, 119-20.
II.
Next, we address the reasonableness of Snead’s
sentence. We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). We “first ensure that the district court
committed no significant procedural error, such as failing to
[properly calculate] the Guidelines range, . . . failing to
consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Id. When considering the substantive
reasonableness of the sentence, we “take into account the
totality of the circumstances.” Id. If the sentence is within
or below a properly calculated Guidelines range, we presume on
appeal that the sentence is reasonable. United States v. Yooho
Weon, 722 F.3d 583, 590 (4th Cir. 2013).
2
We note that this determination forecloses Snead’s
contention that a tractor-trailer involved in the drug-
distribution conspiracy was not registered in his name. The
government alleged that the tractor-trailer was registered in
Snead’s name in its factual basis for the plea, to which Snead
admitted when he pleaded guilty. Cf. Blackledge v. Allison, 431
U.S. 63, 74 (1977) (“Solemn declarations in open court carry a
strong presumption of verity.”).
4
A.
Snead contends that a 2007 state conviction for
possession of a half-ounce of marijuana was fabricated or
altered in order to increase his criminal history category.
Snead’s counsel initially objected to the inclusion of this
conviction in the presentence report (PSR). However, the PSR
noted that an automated records check confirmed the conviction.
Snead’s counsel subsequently withdrew the objection. Evidence
submitted by Snead on appeal supports the fact of his
conviction. 3 Based on this record, we conclude that the district
court did not procedurally err by considering the 2007
conviction. See United States v Slade, 631 F.3d 185, 188 (4th
Cir. 2011) (“The defendant bears the burden of establishing that
the information relied upon by the district court--here the PSR-
-is erroneous.”).
Additionally, we conclude that Snead’s argument that
the 2007 conviction was part of the instant offense is without
3
We recognize that there was a factual inconsistency
between the version of the PSR that Snead argues he reviewed and
the version relied upon by the district court. The
inconsistency was not material for sentencing purposes. The
version of the PSR Snead submitted confirms that he pleaded
guilty to the marijuana offense and received ten days custody
(suspended) and 12-months unsupervised release. E.R. 166.
5
merit. 4 There is no evidence that Snead’s 2007 conviction for
mere possession was relevant to the distribution conspiracy.
See USSG § 4A1.2(a)(1) & cmt. n.1; § 1B1.3(a)(1).
B.
Snead next contends that the drug quantity
attributable to him is too high. The district court calculated
the amount of marijuana attributable to Snead based on
statements by Snead’s codefendants. Snead initially objected to
the drug quantity, but his counsel withdrew the objection at
sentencing. Snead points to no evidence in the record that
contradicts the drug quantity established at sentencing. Cf.
Slade, 631 F.3d at 188 (“[I]t is within the discretion of the
district court to credit the testimony of [] witnesses who
discussed [the defendant’s] involvement in the drug trade.”).
Therefore, we conclude that the district court did not commit
procedural error.
Finding no procedural error, we conclude that Snead’s
below-Guidelines sentence is substantively reasonable. See
Yooho Weon, 722 F.3d at 590.
4
This conclusion also forecloses Snead’s claim that he is
eligible for a safety-valve reduction. See U.S. Sentencing
Guidelines Manual § 5C1.2(a)(1) (2012) (providing that a
defendant is only eligible for the safety valve if the defendant
has no more than one criminal history point).
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III.
Lastly, Snead argues that his trial and appellate
counsel were ineffective. Claims of ineffective assistance of
counsel “are generally not cognizable on direct appeal.” United
States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). We may
entertain such claims only if the record conclusively shows that
defense counsel did not provide effective representation. Id.
(quoting United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999)). We conclude that the record does not conclusively
show that Snead’s counsel were ineffective under the standard
articulated in Strickland v. Washington, 466 U.S. 668, 687
(1984).
IV.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Snead, in writing, of the right to
petition the Supreme Court of the United States for further
review. If counsel believes that such a petition would be
frivolous, but Snead nonetheless requests a petition be filed,
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Snead.
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We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
8