United States v. Rufus , 114 F. App'x 56 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4840
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL ALONZA RUFUS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Matthew J. Perry, Jr., Senior
District Judge. (CR-02-550)
Submitted: July 14, 2004 Decided: November 4, 2004
Before WILLIAMS, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David B. Betts, LAW OFFICES OF DAVID B. BETTS, Columbia, South
Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, William K. Witherspoon, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael Alonza Rufus appeals his convictions and sentence
after pleading guilty to conspiracy to possess with intent to
distribute 500 grams or more of cocaine, in violation of 21 U.S.C.
§ 841(a)(1) (2000), and possession of a firearm in furtherance of
a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)
(2000). We affirm.
Rufus argues the district court abused its discretion
when it found there was a factual basis for his guilty plea as to
the firearm charge under former Fed. R. Crim. P. 11(f). We review
the district court’s determination that a sufficient factual basis
exists for abuse of discretion. United States v. Carr, 271 F.3d
172, 179 (4th Cir. 2001). The court “need only be subjectively
satisfied that there is a sufficient factual basis for a conclusion
that the defendant committed all of the elements of the offense.”
United States v. Mitchell, 104 F.3d 649, 652 (4th Cir. 1997)
(internal citation omitted). “[I]f the evidence presented is
sufficient to demonstrate that the defendant committed the elements
of the charged offense, acceptance of the plea clearly does not
constitute an abuse of discretion.” Id.To establish a violation of § 924(c), the Government must
prove the firearm “furthered, advanced, or helped forward a drug
trafficking crime.” United States v. Lomax, 293 F.3d 701, 705 (4th
Cir. 2002). Factors that might lead a reasonable trier of fact to
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conclude that the requisite nexus existed between the firearm and
the drug offense include: “‘the type of drug activity that is
being conducted, accessibility of the firearm, the type of weapon
. . . , whether the gun is loaded, proximity to drugs or drug
profits, and the time and circumstances under which the gun is
found.’” Id. (quoting United States v. Ceballos-Torres, 218 F.3d
409, 414-15 (5th Cir. 2000)). Accordingly, because Rufus admitted
he moved the firearm from a table that held cocaine and hid it
under a bed just before answering the door to law enforcement
officers, we conclude the district court did not abuse its
discretion when it found there was a sufficient factual basis for
Rufus’s guilty plea.
Rufus also moves to remove his appellate counsel, file a
pro se supplemental brief, file a pro se reply brief, supplement
the record, and proceed on appeal pro se. Rufus does not have a
constitutional right to proceed on appeal pro se. See Martinez v.
Court of Appeal of California, 528 U.S. 152, 163 (2000); United
States v. Gillis, 773 F.2d 549, 560 (4th Cir. 1985). We therefore
deny Rufus’s motion to remove appellate counsel and proceed on
appeal pro se. We also deny Rufus’s motions to supplement the
record and file a pro se reply brief. However, because we
permitted the defendant in Gillis to submit a supplemental pro se
brief, concluding that this provided him with “any ‘right’ he has
to self-representation on appeal,” we grant Rufus’s motion to file
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a pro se supplemental brief. See Gillis, 773 F.2d at 560.
Nevertheless, we have carefully considered the issues Rufus asserts
pro se and conclude that they are meritless. We further conclude
that because the record does not conclusively establish ineffective
assistance of counsel, Rufus’s ineffective assistance claim is not
cognizable in this appeal and should be raised in a 28 U.S.C.
§ 2255 (2000) motion. See United States v. Richardson, 195 F.3d
192, 198 (4th Cir. 1999).
Accordingly, we affirm Rufus’s convictions and sentence.
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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