United States v. Sinclair Ellis, Jr. ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4289
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SINCLAIR ELLIS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
George L. Russell, III, District Judge. (1:16-cr-00515-GLR-1)
Submitted: January 11, 2019 Decided: February 14, 2019
Before RICHARDSON and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Megan E. Coleman, MARCUSBONSIB, LLC, Greenbelt, Maryland, for Appellant.
Jason Daniel Medinger, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sinclair Ellis, Jr., pled guilty to conspiracy to distribute and to possess with intent
to distribute heroin and cocaine, 21 U.S.C. §§ 841, 846 (2012), and was sentenced to 151
months in prison. Ellis appeals. His attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), raising three issues but stating that there are
no meritorious issues for appeal. Ellis has filed a pro se brief. We affirm.
I
Ellis received a two-level reduction of his offense level based on acceptance of
responsibility. See U.S. Sentencing Guidelines Manual § 3E1.1(a) (2016). He contends
that the district court erred because it did not compel the United States to move for an
additional reduction under USSG § 3E1.1(b). Because Ellis raises this claim for the first
time on appeal, our review is for plain error. See Puckett v. United States, 556 U.S. 129,
135 (2009).
A court may compel the Government to move for the additional reduction if the
Government withholds such a motion for an improper reason. United States v. Divens,
650 F.3d 343, 350 (4th Cir. 2011). An improper reason includes considerations beyond
the requirements listed in the guideline. Among the permissible considerations is the
defendant’s assistance in the investigation or prosecution of the offense by timely
notifying authorities of his intent to plead guilty, thereby allowing the Government to
avoid trial preparation and permitting efficient allocation of Government and court
resources. Id. at 345–47.
2
We conclude that there was no error, much less plain error, in the court’s not
compelling the filing of a § 3E1.1(b) motion. In a sentencing memorandum, the United
States stated that it would not move for the additional one-level reduction for the
permissible reason that Ellis had not entered a timely guilty plea, thereby requiring the
Government to prepare for trial and respond to various motions. In addition, Ellis
conceded at sentencing that his plea was untimely and declined to object to not receiving
the one-level reduction. Given the parties’ agreement that the guilty plea was not
promptly made, and the fact that the Government had prepared for a trial that was
scheduled to begin roughly two weeks after Ellis entered his plea, the Government was
permitted to not file the motion. Accordingly, the district court did not err in refusing to
compel a § 3E1.1(b) motion.
II
Ellis alleges that the district court considered erroneous and improper factors when
imposing sentence. Our review of the record shows that, although both heroin and
fentanyl were discussed during argument, the court based the sentence only on Ellis’s
involvement with heroin and cocaine, the drugs charged in the superseding indictment.
Further, the court’s mention of drugs in general causing death and the trade of drug
dealing being morally repugnant was permissible, as these facts relate to the serious
nature of Ellis’s offense. See 18 U.S.C. § 3553(a)(1) (2012). Contrary to Ellis’s
argument, the court considered only permissible statutory factors when imposing the
procedurally and substantively reasonable within-Guidelines sentence.
III
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Ellis claims that his attorney was ineffective for a variety of reasons. A claim of
ineffective assistance of counsel is not cognizable on direct appeal unless ineffectiveness
conclusively appears on the face of the record. United States v. Baptiste, 596 F.3d 214,
216 n.1 (4th Cir. 2010). Because ineffectiveness does not conclusively appear on the
face of the record, we decline to address this issue.
IV
Finally, Ellis claims that his plea was involuntary because it was unclear that he
was satisfied with his attorney. This claim is not distinct from Ellis’s claim for
ineffective assistance of counsel, discussed above. We further note that during his Rule
11 hearing, Ellis confirmed that he had signed a document stating that he was pleading
guilty knowingly and voluntarily “with the assistance of counsel with whose services he
[was] completely satisfied.” We therefore find no merit to Ellis’s claim.
V
Pursuant to Anders, we have reviewed the entire record and have found no
meritorious issues for appeal. Accordingly, we affirm. Counsel’s motion to withdraw
from representation is denied at this time. This court requires that counsel inform Ellis,
in writing, of the right to petition the Supreme Court of the United States for further
review. If Ellis 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 Ellis. We
dispense with oral argument because the facts and legal contentions are adequately
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presented in the materials before this court and argument would not aid the decisional
process.
AFFIRMED
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