United States v. Ronald Simpson, Jr. , 450 F. App'x 314 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4284
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONALD MARSHALL SIMPSON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:09-cr-00106-JAB-1)
Submitted: October 12, 2011 Decided: October 19, 2011
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Christopher B. Shella, C. BURELL SHELLA, Durham, North Carolina,
for Appellant. Michael A. DeFranco, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronald Marshall Simpson, Jr. appeals his conviction by
jury and his subsequent 235-month sentence for possessing a
firearm as a convicted felon, in violation of 18 U.S.C.
§§ 922(g) and 924(e) (2006). Simpson’s counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), in
which he states that he could identify no meritorious issues for
appeal, but questions whether Simpson was properly sentenced as
an armed career criminal and whether his sentence is otherwise
reasonable. Simpson has filed a pro se informal brief, raising
several issues relating to his conviction and sentence. Having
reviewed the record, we affirm the judgment of the district
court.
On the armed career criminal front, counsel references
the concerns recently highlighted in United States v. Simmons,
649 F.3d 237 (4th Cir. 2011) (en banc). Pertinent to this
appeal, a defendant is eligible for the enhanced sentencing
provisions of the Armed Career Criminal Act only if he possesses
three previous convictions “for a violent felony or a serious
drug offense, or both, committed on occasions different from one
another.” See 18 U.S.C. § 924(e)(1). For a crime to qualify as
a “violent felony,” it must be “punishable by imprisonment for a
term exceeding one year.” 18 U.S.C. § 924(e)(2)(B). In
Simmons, we held that a prior North Carolina offense was
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punishable for a term exceeding one year only if the particular
defendant before the court had been eligible for such a sentence
under the applicable statutory scheme, taking into account his
criminal history and the nature of his offense. Id.; see also
N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting forth North
Carolina’s structured sentencing scheme).
Because Simpson did not raise this argument before the
district court, 1 this court’s review is for plain error. United
States v. Olano, 507 U.S. 725, 732 (1993); United States v.
Lynn, 592 F.3d 572, 577 (4th Cir. 2010). To establish plain
error, Simpson must show that “(1) an error was made; (2) the
error is plain; and (3) the error affects substantial rights.”
United States v. Massenburg, 564 F.3d 337, 342–43 (4th Cir.
2009). “If all three of these conditions are met, an appellate
court may then exercise its discretion to notice a forfeited
error, but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”
United States v. Carr, 303 F.3d 539, 543 (4th Cir. 2002)
(internal quotation marks, citations, and alterations omitted).
1
Simpson argued at sentencing only that he should not be
sentenced under § 924(e) because his prior breaking and entering
convictions were not “violent” felonies for the purposes of
§ 924(e). This argument, however, is foreclosed by circuit
precedent. See United States v. Thompson, 588 F.3d 197, 202
(4th Cir. 2009), cert. denied, 130 S. Ct. 1916 (2010).
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In the sentencing context, an error affects substantial rights
if the defendant can show that the sentence imposed “was longer
than that to which he would otherwise be subject.” United
States v. Washington, 404 F.3d 834, 849 (4th Cir. 2005)
(internal quotation marks and citation omitted).
After reviewing the entire record on appeal, we
conclude that Simpson cannot establish remediable plain error.
Our review of the presentence report (the “PSR”) prepared in
this case convinces us that, even in light of Simmons, Simpson
possesses at least three prior convictions for violent felonies
as defined in the Armed Career Criminal Act. The district court
therefore properly found that Simpson was eligible for the
enhanced penalties provided for in § 924(e) and the
corresponding Guidelines provisions found in U.S. Sentencing
Guidelines Manual (“USSG”) § 4B1.4.
With respect to the second area of inquiry highlighted
by counsel, we review a sentence for reasonableness under a
deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). The first step in this review
requires us to inspect for procedural reasonableness by ensuring
that the district court committed no significant procedural
errors, such as improperly calculating the Guidelines range,
failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or
insufficiently explaining the selected sentence. United
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States v. Boulware, 604 F.3d 832, 837-38 (4th Cir. 2010).
Because Simpson did not preserve a challenge to either the
district court’s Guidelines calculations or its explanation of
its sentence, we review them for plain error. Fed. R. Crim. P.
52(b); Lynn, 592 F.3d at 577, 581-85. We then consider the
substantive reasonableness of the sentence imposed, taking into
account the totality of the circumstances. Gall, 552 U.S. at
51. A sentence within a properly-calculated Guidelines range is
presumptively reasonable. United States v. Allen, 491 F.3d 178,
193 (4th Cir. 2007).
We have thoroughly reviewed the record and find no
error in the district court’s calculations of the applicable
Guidelines range, the allocution opportunity it gave to Simpson,
or its explanation of the chosen sentence in terms of the
applicable sentencing objectives. Nor have we identified any
reason to defeat the presumptive substantive reasonability of
the within-Guidelines sentence levied upon Simpson. Allen, 491
F.3d at 193. We therefore decline to substitute our judgment
for that of the district court.
Nor do any of the claims raised by Simpson in his pro
se informal brief merit reversal of the district court’s
judgment. We have carefully reviewed each of the challenges
Simpson raises to his conviction and conclude that they are
without merit or, at most, even crediting Simpson’s factual
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averments, amount to harmless error. 2 With respect to Simpson’s
several ineffective assistance claims, such claims are generally
not cognizable on direct appeal unless the record conclusively
establishes counsel’s “objectively unreasonable performance” and
resulting prejudice. United States v. Benton, 523 F.3d 424, 435
(4th Cir. 2008). To allow for adequate development of the
record, ineffective assistance claims should be pursued in a
motion filed pursuant to 28 U.S.C.A. § 2255 (West Supp. 2011).
United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir.
2010). Because the record does not conclusively demonstrate
that Simpson’s trial or appellate counsel provided inadequate
representation, we decline to entertain Simpson’s ineffective
assistance of counsel claims on direct appeal.
In accordance with Anders, we have reviewed the entire
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 Simpson, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Simpson requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
2
To the extent that Simpson urges error with respect to the
composition of the jury, we deem his contentions to be raising a
claim for ineffective assistance of counsel, which is more
properly brought collaterally.
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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 Simpson.
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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