United States v. Taylor ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4497
DARRYL LEE TAYLOR, a/k/a Opie,
a/k/a "O",
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CR-96-986)
Submitted: February 16, 1999
Decided: March 22, 1999
Before WILKINS and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. Robert Hayden Bickerton, Assistant United States
Attorney, Charleston, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Darryl Lee Taylor appeals from his conviction, pursuant to a guilty
plea, of one count of conspiracy to distribute crack cocaine in viola-
tion of 21 U.S.C. § 846 (1994), and one count of possession with
intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1)
(1994). Taylor's attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), certifying that Taylor's appeal does
not present any meritorious issues. Counsel asserts that the district
court substantially complied with Fed. R. Crim. P. 11 in taking Tay-
lor's guilty plea and properly determined his sentence under the Sen-
tencing Guidelines. Taylor has filed a pro se supplemental brief
contending that he was denied effective assistance of counsel. Finding
no reversible error, we affirm.
The court properly determined that Taylor was competent to enter
a plea and that he understood the charges against him. He was
informed of the maximum and minimum sentences and the possible
fine. Taylor stated that he understood the court was obligated to con-
sider the applicable Sentencing Guidelines. The court also reviewed
the plea agreement with Taylor. In that agreement, Taylor agreed that
1.5 kilograms of crack cocaine would be attributed to him for sentenc-
ing purposes. He also agreed that a four-level upward enhancement
to the offense level was warranted because of his role in the offense
as an organizer or leader. Taylor stated at the plea hearing that he was
not promised anything other than what was in the agreement. He was
informed of the rights he was waiving by entering a guilty plea. After
hearing from the Government, the court found a sound factual basis
for accepting the guilty plea.
Counsel states that the court substantially complied with Rule 11,
but misinformed Taylor of the minimum term of supervised release,*
_________________________________________________________________
*The court misinformed Taylor of the term of supervised release by
stating that he faced a minimum 16 year term of supervised release. See
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failed to inform Taylor of the possibility of restitution, and failed to
warn Taylor that he faced possible perjury charges if he gave false
testimony under oath during the Rule 11 proceeding. Any deficiencies
in the Rule 11 proceeding were harmless. See United States v. Goins,
51 F.3d 400, 402 (4th Cir. 1995). Because Taylor received a shorter
term of supervised release than the minimum he was advised by the
court that he could receive, the court's failure to inform Taylor of the
correct minimum term of supervised release was harmless error. The
court's failure to inform Taylor of the possibility of restitution was
harmless because he was not ordered to pay restitution. Finally, the
court's failure to inform Taylor of the possibility of a perjury charge
if he answered any questions falsely under oath was also harmless
because there is "no current or prospective prosecution of [defendant]
for perjury." United States v. Graves, 98 F.3d 258, 259 (7th Cir.
1996).
The presentence investigation report ("PSI") recommended a base-
offense level of 38 on the basis of 1.5 kilograms of crack cocaine. See
USSG § 2D1.1(c). It also recommended a four-level upward enhance-
ment for Taylor's role in the offense. See USSG § 3B1.1(a). Based on
Taylor's prior convictions, he was placed in criminal history category
VI. The PSI did not recommend a reduction in the offense level for
acceptance of responsibility. See USSG § 3E1.1.
At sentencing, the district court granted Taylor's motion for a
three-level reduction in the offense level due to his acceptance of
responsibility. There were no other objections to the PSI. As a result,
Taylor's sentencing range was 360 months to life imprisonment. The
Government moved for a downward departure pursuant to USSG
§ 5K1.1, which the court granted. The court sentenced Taylor to 240
_________________________________________________________________
Sentencing Tr. at 19-20. Section 841(b)(1)(A) requires a ten-year term of
supervised release for the conspiracy conviction and§ 841(b)(1)(C)
requires a six year term of supervised release for the distribution convic-
tion. Generally, supervised release terms imposed for separate convic-
tions run concurrently. See 18 U.S.C.A.§ 3624(e) (West Supp. 1998);
U.S. Sentencing Guidelines Manual § 5G1.2 (1995); United States v.
Myers, 104 F.3d 76, 81 (5th Cir. 1997), cert. denied, ___ U.S. ___, 65
U.S.L.W. 3754 (U.S. May 12, 1997) (No. 96-8403).
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months' imprisonment and supervised release terms of 10 years as to
the conspiracy conviction and six years as to the distribution convic-
tion to run concurrently. We find the sentence was not imposed in
violation of law and was not the result of an incorrect application of
the Sentencing Guidelines.
Regarding Taylor's claim raised in his pro se supplemental brief,
ineffective assistance of counsel claims are not appropriate on direct
appeal. These claims should be raised in a motion pursuant to 28
U.S.C.A. § 2255 (West 1994 & Supp. 1998), unless it conclusively
appears from the record that counsel did not provide effective assis-
tance. See United States v. Fisher, 477 F.2d 300, 302 (4th Cir. 1973).
A review of the record in this case does not reveal any conclusive evi-
dence that Taylor's trial counsel was ineffective. Therefore, we find
that it is more appropriate for Taylor to bring this claim in a § 2255
motion.
Pursuant to the requirements of Anders, this court has reviewed the
record for potential error and has found none. Therefore, we affirm
Taylor's convictions and sentence. This court requires that counsel
inform his client, in writing, of his right to petition the Supreme Court
of the United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition would be
frivolous, then counsel may move this court for leave to withdraw
from representation. Counsel's motion must state that a copy thereof
was served on the client. 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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