United States v. Smalls , 434 F. App'x 182 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5035
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM ISAAC SMALLS,
Defendant - Appellant.
No. 10-5043
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM ISAAC SMALLS,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00008-MR-1; 1:96-cr-00075-MR-DLH-1)
No. 10-5044
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM ISAAC SMALLS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Shelby. Martin K. Reidinger,
District Judge. (4:97-cr-00115-MR-DLH-1)
Submitted: May 27, 2011 Decided: June 3, 2011
Before GREGORY and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Scott C. Brown, SCOTT C. BROWN LAW OFFICE, Wheeling, West
Virginia, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
William Isaac Smalls pled guilty, pursuant to a
written plea agreement, to bank robbery, in violation of 18
U.S.C. § 2113(a) (2006), and using and carrying a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A) (2006). Smalls committed these offenses in 2009
while he was on supervised release. Smalls also admitted to
violating the terms of his supervised release. The district
court sentenced Smalls to a total of 262 months’ imprisonment,
the bottom of the applicable Guidelines range, and ordered him
to pay $4000 in restitution. Additionally, the court imposed a
concurrent twenty-four-month sentence on the supervised release
violations. Finding no error, we affirm.
Appellate counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he asserts there are
no meritorious issues for appeal but questions the adequacy of
the Fed. R. Crim. P. 11 hearing. Counsel certified that he
served a copy of the Anders brief on Smalls, and the clerk’s
office notified Smalls of his right to file a pro se
supplemental brief. Smalls did not file a timely pro se
supplemental brief, but has instead moved to strike counsel’s
brief and asserts that his counsel provided ineffective
assistance and that the Government breached the plea agreement.
The Government elected not to file a responsive brief.
3
Counsel questions whether the district court complied
with the requirements of Rule 11 but points to no specific error
by the court. As Smalls did not seek to withdraw his guilty
plea in the district court or otherwise preserve any alleged
Rule 11 error by timely objection, review by this court is for
plain error. United States v. Dominguez Benitez, 542 U.S. 74,
76 (2004); United States v. Martinez, 277 F.3d 517, 524-25 (4th
Cir. 2002). To establish plain error, the defendant must show
that an error occurred, that the error was plain, and that the
error affected his substantial rights. United States v. Olano,
507 U.S. 725, 732-34 (1993); United States v. Massenburg, 564
F.3d 337, 342-43 (4th Cir. 2009) (stating defendant bears burden
of establishing each of the plain error requirements). We have
reviewed the record and conclude that the district court
committed no reversible error in its conduct of the Rule 11
hearing.
In his motions to strike, Smalls contends that his
counsel provided ineffective assistance by failing to afford him
the opportunity to challenge the brief filed by counsel. An
ineffective assistance of counsel claim generally is not
cognizable on direct appeal, but should instead be asserted in a
post-conviction motion under 28 U.S.C.A. § 2255 (West Supp.
2010). See United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999). This court “may address [a claim of ineffective
4
assistance] on direct appeal only if the lawyer’s
ineffectiveness conclusively appears from the record.” United
States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
Because our docket shows that counsel served a copy of the
Anders brief on Smalls, and the clerk’s office notified Smalls
of his right to file a pro se supplemental brief, the record
does not conclusively establish that counsel was ineffective.
Therefore, Smalls’ ineffective assistance of counsel claim is
not cognizable on direct appeal.
Smalls also alleges that the Government breached the
terms of the plea agreement by advocating for application of the
career offender Guideline provision. “‘It is well-established
that the interpretation of plea agreements is rooted in contract
law, and that each party should receive the benefit of its
bargain.’” United States v. Bowe, 257 F.3d 336, 345 (4th Cir.
2001) (quoting United States v. Peglera, 33 F.3d 412, 413 (4th
Cir. 1994)). We review questions regarding the interpretation
of plea agreements de novo and factual questions for clear
error. United States v. Chase, 466 F.3d 310, 314 (4th Cir.
2006). We have reviewed the record and conclude that the
Government did not breach the plea agreement.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm the judgments of the district
5
court. We deny Smalls’ motions to strike. 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 in
the decisional process.
AFFIRMED
6