United States v. Whittington , 343 F. App'x 857 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5266
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JASON ALLEN WHITTINGTON,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:06-cr-00491-LMB-2)
Submitted: August 17, 2009 Decided: September 3, 2009
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael C. Sprano, THE SPRANO LAW FIRM, Fairfax, Virginia, for
Appellant. AeJean Cha, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jason Allen Whittington pled guilty pursuant to a plea
agreement * to possession with intent to distribute marijuana,
methylenedioxymethamphetamine, methylenedioxyamphetamine, and
cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1)
(2006), and possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c) (2006).
Whittington was sentenced to fifty-one months for his narcotics
conviction, and sixty months for his weapons conviction, the
latter term to run consecutive to the former term, for a total
of 111 months. Counsel for Whittington has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
explaining that he found no meritorious grounds for appeal but
suggesting that Whittington’s: (i) guilty plea was involuntary
and not supported by a sufficient factual basis; and (ii)
sentence is unreasonable because the district court refused to
run his federal sentence concurrent to the state sentence
Whittington was then serving. Counsel also moved for permission
to withdraw from further representation of Whittington.
Whittington filed a pro se supplemental brief, asserting that
*
Whittington waived his right to appeal his conviction and
sentence in his plea agreement. Because the Government failed
to assert the waiver as a bar to the appeal, however, we may
undertake an Anders review. United States v. Poindexter,
492 F.3d 263, 271 (4th Cir. 2007).
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his attorney was ineffective for failing to object at sentencing
to the district court’s purported failure to consider the
18 U.S.C. § 3553(a) (2006) factors and his troubled childhood
before imposing his sentence. The Government has declined to
file a responding brief. Finding no error, we affirm the
district court’s judgment and deny counsel’s motion to withdraw.
In accordance with Anders, we have reviewed the
record in this case and have found no meritorious issues for
review. The record reveals that the district court fully
complied with the Fed. R. Crim. P. 11 requirements during the
plea colloquy, ensuring that Whittington’s plea was knowing and
voluntary, that he understood the rights he was giving up by
pleading guilty and the sentence he faced, and that he committed
the offenses to which he was pleading guilty. Additionally,
Whittington attested during the hearing that he committed the
crimes to which he was pleading guilty, that he fully understood
the ramifications of his guilty plea, and that he was made no
promises outside those made by the Government in his plea
agreement. Moreover, Whittington explicitly agreed in his
statement of facts that if the matter went to trial, the
Government would be able to establish the elements of the crimes
to which he pled guilty beyond a reasonable doubt. Because no
error was committed during the Rule 11 hearing, and since
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Whittington’s plea was knowing, voluntary, and supported by a
sufficient factual basis, we affirm Whittington’s convictions.
We also affirm Whittington’s sentence. After United
States v. Booker, 543 U.S. 220 (2005), a sentence is reviewed
for reasonableness, using an abuse of discretion standard of
review. Gall v. United States, 128 S. Ct. 586, 597 (2007). The
first step in this review requires the court to ensure that the
district court committed no significant procedural error.
United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008).
Assuming the district court committed no significant procedural
error, this court must next consider the substantive
reasonableness of the sentence imposed, taking into account the
totality of the circumstances. Id. at 161-62. A sentence
within the properly calculated Guidelines range may be afforded
an appellate presumption of reasonableness. See Rita v. United
States, 551 U.S. 338, 341 (2007); see also Nelson v. United
States, 129 S. Ct. 890, 892 (2009) (emphasizing that the
presumption of reasonableness accorded a within-Guidelines
sentence is an appellate court presumption rather than a
presumption enjoyed by a sentencing court).
We find the district court’s 111-month sentence to be
reasonable. First, Whittington was sentenced to the statutory
mandatory minimum on his weapons conviction and the district
court was obligated to run the sentence on that conviction
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consecutive to the sentence imposed for Whittington’s narcotics
conviction. See 18 U.S.C. § 924(c). Accordingly, that sentence
is per se reasonable. See United States v. Farrior, 535 F.3d
210, 224 (4th Cir.) ("A statutorily required sentence . . . is
per se reasonable.") (emphasis in original), cert. denied, 129
S. Ct. 743 (2008).
We also find that the district court committed no
reversible procedural error in sentencing Whittington and find
that his within-Guidelines sentence on the narcotics conviction
is substantively reasonable. See Rita, 127 S. Ct. at 2459. We
reject Whittington’s assertion that the district court erred
when it refused to run his federal sentence concurrent to the
state probation revocation sentence he was then serving. See
U.S. Sentencing Guidelines Manual § 5G1.3(c) (2007) (“[I]n cases
in which the defendant was on . . . state probation . . . at the
time of the instant offense and has had such probation . . .
revoked . . . the Commission recommends that the sentence for
the instant offense be imposed consecutively to the sentence
imposed for the revocation.”).
Last, we reject on this appeal Whittington’s assertion
that his attorney was ineffective for failing to object to the
district court’s purported failure to consider the § 3553(a)
factors and his troubled childhood before imposing his sentence.
An ineffective assistance of counsel claim should generally be
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raised by a habeas corpus motion under 28 U.S.C. § 2255 (2006)
in the district court. See United States v. Richardson,
195 F.3d 192, 198 (4th Cir. 1999). Although an ineffective
assistance claim may be cognizable on direct appeal if “it
‘conclusively appears’ from the record that defense counsel did
not provide effective representation,” Id. (internal citation
omitted), it does not conclusively appear on the record that
counsel provided ineffective representation or that Whittington
was prejudiced by counsel’s failure to object. See Strickland
v. Washington, 466 U.S. 668, 687-88 (1984). Accordingly, we
conclude that an ineffective assistance of counsel claim is not
cognizable on this appeal.
Having reviewed the record in this case and finding no
meritorious issues for review, we affirm the district court’s
judgment. At this juncture, we also deny counsel’s motion to
withdraw from further representation of Whittington. Rather,
this court requires that counsel inform Whittington in writing
of his right to petition the Supreme Court of the United States
for further review. If Whittington requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may motion this court for leave to
withdraw from representation. Counsel's motion must state that
a copy thereof was served on Whittington. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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