United States v. Brown , 142 F. App'x 141 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4587
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALONZO MARVIN BROWN, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry M. Herlong, Jr., District
Judge. (CR-01-462)
Submitted: June 17, 2005 Decided: July 14, 2005
Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Johnny E. Watson, Sr., Columbia, South Carolina, for Appellant. J.
Strom Thurmond, Jr., United States Attorney, E. Jean Howard,
Assistant United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Alonzo M. Brown, Jr., appeals the district court’s order
sentencing him to 180 month’s imprisonment following his guilty
plea to conspiring to distribute crack cocaine, in violation of 21
U.S.C. §§ 841(a)(1), 846 (2000). Finding no error, we affirm.
In his appeal, filed pursuant to Anders v. California,
386 U.S. 738 (1967), counsel for Brown claims that the district
court erred in accepting Brown’s plea because the Government
coerced him into pleading guilty. As this claim was not preserved
in the district court, we review for plain error. Brown was
specifically asked by the district court whether he was coerced or
otherwise threatened to plead guilty, and he responded negatively.
Absent a compelling reason to find otherwise, Brown’s
representations at the plea hearing are binding. See Savino v.
Murray, 82 F.3d 593, 603 (4th Cir. 1996). We find no compelling
reason in the record before us to disregard Brown’s sworn
statements. Accordingly, we deny this claim.
Brown next claims he was wrongfully convicted of a
conspiracy spanning from 1995 to 2001 because no evidence was
proffered demonstrating his continuing involvement in the
conspiracy beyond 1996. The district court advised Brown of the
scope of the charge he was pleading guilty to, including the range
of dates encompassed by the charged conspiracy, and Brown indicated
he understood the charge. Moreover, a defendant “is presumed to
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continue in a conspiracy until he withdraws from the conspiracy by
affirmative action.” United States v. Barsanti, 943 F.2d 428, 437
(4th Cir. 1991) (citation omitted). Brown has offered no evidence
to demonstrate he withdrew from the conspiracy. Accordingly, we
deny this claim.
Brown next claims he was denied a speedy trial on the
basis of the Government’s delay in obtaining the indictment. The
Fifth Amendment’s Due Process Clause protects against
pre-accusation delay. United States v. Lovasco, 431 U.S. 783, 789
(1977). To establish a Fifth Amendment violation, a defendant must
first show actual prejudice. Id. at 790; Howell v. Barker, 904
F.2d 889, 894-95 (4th Cir. 1990). Here, Brown fails to show that
there was any resulting prejudice from the delay. Brown claims
that because he continued to engage in unrelated criminal activity
between 1996 and the instant indictment, he was prejudiced by a
higher criminal history category. We find this argument utterly
unpersuasive. Further, Brown suffered no actual prejudice because
his unrelated criminal activity in 1996 and afterward did not
change his criminal history category. As a consequence, we deny
this claim.
Finally, Brown claims he was subjected to ineffective
assistance of counsel. This court will not consider such a claim
on direct appeal “unless counsel’s ineffectiveness conclusively
appears on the record.” United States v. James, 337 F.3d 387, 391
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(4th Cir. 2003), cert. denied, 124 S. Ct. 1111 (2004). We do not
find such conclusive evidence with regard to this case.
Accordingly, we decline to consider this claim.
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 in 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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