United States v. Jarod Brown , 494 F. App'x 374 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4073
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAROD A. BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:10-cr-01096-PMD-1)
Submitted: September 13, 2012 Decided: September 26, 2012
Before GREGORY, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard N. Buchanan, Charleston, South Carolina, for Appellant.
Robert Nicholas Bianchi, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jarod Brown pled guilty to possessing firearms as a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006).
The district court sentenced him under the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e) (2006), to the statutory
mandatory minimum of fifteen years’ imprisonment. Brown
appeals. On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), certifying that there
are no meritorious issues for review but questioning whether the
district court conducted an adequate Fed. R. Crim. P. 11
colloquy, whether trial counsel was ineffective, and whether the
district court erred in sentencing Brown under the ACCA. Brown
was notified of his right to file a supplemental pro se brief
but has not done so. We affirm.
Prior to accepting a plea, a trial court must conduct
a plea colloquy in which it informs the defendant of, and
determines that the defendant comprehends, the nature of the
charges to which he is pleading guilty, any mandatory minimum
penalty, the maximum possible penalty he faces, and the rights
he is relinquishing by pleading guilty. Fed. R. Crim. P.
11(b)(1); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir.
1991). The district court “must determine that there is a
factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). The
district court also must ensure that the defendant’s plea was
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voluntary and did not result from force or threats. Fed. R.
Crim. P. 11(b)(2). Because Brown did not properly preserve any
error in his plea proceeding or Rule 11 colloquy, we review the
proceeding for plain error. See United States v. Massenburg,
564 F.3d 337, 342-43 (4th Cir. 2009); see also United States v.
Olano, 507 U.S. 725, 732 (1993) (requiring appellant to
demonstrate error occurred, was plain, and affected his
substantial rights).
While the district court made two minor omissions
during the plea colloquy, see Fed. R. Crim. P. 11(b)(1)(D), (M),
we conclude Brown cannot establish plain error in these
omissions. See Massenburg, 564 F.3d at 343; see also United
States v. Saft, 558 F.2d 1073, 1080 (2d Cir. 1977) (addressing
failure to advise of right to counsel). Rather, the district
court substantially complied with the requirements of Rule 11
and ensured that Brown’s plea was knowing and voluntary and
supported by an adequate factual basis. See DeFusco, 949 F.3d
at 116, 119-20. Thus, we conclude that Brown is not entitled to
relief on this ground.
Next, counsel questions whether trial counsel was
ineffective in failing to obtain a conditional guilty plea
preserving appellate review of Brown’s suppression arguments or
in failing to properly advise Brown regarding the effect of his
guilty plea on those arguments. As counsel appropriately notes,
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however, claims of ineffective assistance of counsel “are
generally not cognizable on direct appeal . . . unless it
conclusively appears from the record that defense counsel did
not provide effective representation.” United States v. Benton,
523 F.3d 424, 435 (4th Cir. 2008) (internal quotation marks
omitted). Instead, such claims are properly raised in a motion
pursuant to 28 U.S.C.A. § 2255 (West Supp. 2012). United States
v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). Because the
record does not conclusively establish ineffective assistance of
counsel, we decline to consider such claims at this juncture.
Turning to Brown’s armed career criminal designation,
we review the district court’s application of a statutory
sentencing enhancement de novo. United States v. Carr, 592 F.3d
636, 639 n.4 (4th Cir. 2010). A defendant may be properly
sentenced under the ACCA if he violates 18 U.S.C. § 922(g)(1)
and has at least three prior convictions for violent felonies or
serious drug offenses “committed on occasions different from one
another.” 18 U.S.C. § 924(e)(1) (2006). The record
demonstrates that Brown had three prior convictions for
controlled substance offenses occurring on separate occasions
and punishable by more than ten years’ imprisonment. See S.C.
Code Ann. §§ 44-53-370, 44-53-375(B)(1) (2006) (statutory
maximum sentences); United States v. Williams, 508 F.3d 724,
727-31 (4th Cir. 2007) (finding convictions under Youthful
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Offender Act acceptable ACCA predicates); United States v.
Letterlough, 63 F.3d 332, 337 (4th Cir. 1995) (addressing when
predicate convictions occurred “on occasions different from one
another” under ACCA). Thus, we conclude that the district court
did not err in the imposition of the enhanced sentence.
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 Brown, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Brown 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 Brown.
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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