United States v. Dupre Jenkins , 615 F. App'x 806 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4091
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DUPRE DISHAWN JENKINS, a/k/a Dupree Dishawn Jenkins,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:14-cr-00145-WO-1)
Submitted: September 9, 2015 Decided: September 11, 2015
Before SHEDD, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Craig M. Cooley, COOLEY LAW OFFICE, Cary, North Carolina, for
Appellant. Terry Michael Meinecke, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dupre Dishawn Jenkins pled guilty, pursuant to a written
plea agreement, to two counts of interference with commerce by
robbery, in violation of 18 U.S.C. §§ 1951(a), 2 (2012). The
district court sentenced Jenkins to concurrent 108-month terms
of imprisonment, within the 100- to 125-month advisory
Sentencing Guidelines range. On appeal, counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious grounds for appeal, but
questioning whether Jenkins was denied effective assistance of
counsel. Jenkins was advised of his right to file a pro se
supplemental brief, but has not filed one. The Government
declined to file a brief.
Because Jenkins did not move in the district court to
withdraw his guilty plea, we review the guilty plea hearing for
plain error. United States v. Martinez, 277 F.3d 517, 525 (4th
Cir. 2002). “To establish plain error, [Jenkins] must show that
an error occurred, that the error was plain, and that the error
affected his substantial rights.” United States v. Muhammad,
478 F.3d 247, 249 (4th Cir. 2007). Even if Jenkins satisfies
these requirements, “correction of the error remains within our
discretion, which we should not exercise . . . unless the error
seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. (internal quotation marks and
2
citation omitted). Our review of the record leads us to
conclude that the district court complied with Rule 11 of the
Federal Rules of Criminal Procedure in accepting Jenkins’ guilty
plea, which Jenkins entered knowingly and voluntarily.
Next, we review Jenkins’ sentence for procedural and
substantive reasonableness under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). We must first ensure that the district court did not
commit any “significant procedural error,” such as failing to
properly calculate the applicable Guidelines range, failing to
consider the 18 U.S.C. § 3553(a) (2012) sentencing factors, or
failing to adequately explain the sentence. Id. If we find the
sentence procedurally reasonable, we then consider its
substantive reasonableness. Id. at 328. We presume on appeal
that a sentence within the properly calculated Guidelines range
is substantively reasonable. United States v. Dowell, 771 F.3d
162, 176 (4th Cir. 2014). Such a presumption is rebutted only
when the defendant shows “that the sentence is unreasonable when
measured against the § 3553(a) factors.” United States v.
Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006).
Upon review, we discern no procedural or substantive
sentencing error by the district court. The district court
correctly calculated Jenkins’ advisory Guidelines range, heard
argument from counsel, provided Jenkins an opportunity to
3
allocute, and considered the § 3553(a) sentencing factors. We
have reviewed the record and conclude that Jenkins’ within-
Guidelines sentence is both procedurally and substantively
reasonable.
Turning to Jenkins’ ineffective assistance of counsel
claims, unless an attorney’s ineffectiveness conclusively
appears on the face of the record, such claims are not generally
addressed on direct appeal, United States v. Benton, 523 F.3d
424, 435 (4th Cir. 2008), but rather should be raised in a
motion brought pursuant to 28 U.S.C. § 2255 (2012), in order to
permit sufficient development of the record. United States v.
Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). Because the
record does not conclusively establish ineffective assistance of
counsel, we conclude that these claims should be raised, if at
all, in a § 2255 motion.
Accordingly, we affirm the judgment of the district court.
In accordance with Anders, we have reviewed the record in this
case and have found no meritorious issues for appeal. This
court requires that counsel inform Jenkins, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Jenkins 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
4
representation. Counsel’s motion must state that a copy thereof
was served on Jenkins.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
5