United States v. Hodge , 416 F. App'x 298 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4530
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BILLY DEONANDRE HODGE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:08-cr-01082-TLW-1)
Submitted: February 1, 2011 Decided: March 11, 2011
Before MOTZ, SHEDD, and AGEE, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Kathy Price Elmore, ORR ELMORE & ERVIN, LLC, Florence, South
Carolina, for Appellant. Carrie Ann Fisher, Assistant United
States Attorney, Greenville, South Carolina; Rose Mary Sheppard
Parham, Assistant United States Attorney, Florence, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Billy Deonandre Hodge pled guilty to armed robbery in
violation of 18 U.S.C. § 1951(a) (2006) and use of a firearm in
the commission of a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A) (2006). Hodge’s written plea agreement included
a Federal Rule of Criminal Procedure 11(c)(1)(C) stipulated
sentence of 240 months’ imprisonment. The district court
imposed the stipulated sentence. Hodge then filed this timely
appeal.
Hodge’s attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), questioning the
adequacy of Hodge’s Federal Rule of Criminal Procedure 11
hearing. A letter filed by Hodge was docketed as an untimely
pro se supplemental brief in which he asserts that counsel was
ineffective for misleading him into signing the plea agreement
for a sentence over his guideline range. Because we find no
meritorious grounds for appeal, we affirm.
Hodge questions whether the district court adequately
advised him during his Rule 11 hearing. Prior to accepting a
guilty plea, a district court must conduct a plea colloquy in
which it informs the defendant of, and determines that the
defendant comprehends, the nature of the charge to which he is
pleading guilty, any mandatory minimum penalty, the maximum
possible penalty he faces, and the rights he is relinquishing by
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pleading guilty. Fed. R. Crim. P. 11(b); United States v.
DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). “In reviewing the
adequacy of compliance with Rule 11, this Court should accord
deference to the trial court’s decision as to how best to
conduct the mandated colloquy with the defendant.” DeFusco, 949
F.2d at 116.
We have thoroughly reviewed the record in this case
and conclude that the district court complied with the mandates
of Rule 11 in accepting Hodge’s guilty plea. Thus, we hold that
the record affirmatively shows there was a factual basis for
Hodge’s plea, Hodge understood the constitutional rights he
waived in pleading guilty, and Hodge’s guilty plea was knowing
and voluntary. Additionally, we have reviewed Hodge’s claims of
ineffective assistance of counsel and find that the record does
not conclusively establish ineffective assistance. Accordingly,
the ineffective assistance claims are not cognizable on direct
appeal. United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999).
Next, we conclude we lack jurisdiction to review
Hodge’s sentence. The federal statute governing appellate
review of a sentence, 18 U.S.C. § 3742(c) (2006), limits the
circumstances under which a defendant may appeal a sentence to
which he stipulated in a Rule 11(c)(1)(C) plea agreement to
claims that “his sentence was imposed in violation of law [or]
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was imposed as a result of an incorrect application of the
sentencing guidelines [.]” United States v. Sanchez, 146 F.3d
796, 797 & n.1 (10th Cir. 1998); United States v. Littlefield,
105 F.3d 527, 527-28 (9th Cir. 1997). Here, Hodge’s sentence
did not exceed the applicable statutory maximum and was the
precise sentence he had bargained for with the Government.
Thus, review of his sentence is precluded by § 3742(c).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Hodge’s conviction and dismiss his appeal to
the extent he challenges his sentence. This court requires that
counsel inform Hodge in writing of the right to petition the
Supreme Court of the United States for further review. If Hodge
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 Hodge.
Finally, we deny Hodge’s motion to appoint new counsel and
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 IN PART;
DISMISSED IN PART
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