United States v. Washington , 169 F. App'x 779 ( 2006 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 05-4227
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    MARIO FANEAK WASHINGTON,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Asheville.  Lacy H. Thornburg,
    District Judge. (CR-04-63)
    Submitted:   November 30, 2005             Decided:   March 3, 2006
    Before WILKINSON, WILLIAMS, and GREGORY, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    M. Timothy Porterfield, Charlotte, North Carolina, for Appellant.
    Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
    North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Mario Faneak Washington appeals the district court’s
    order sentencing him to 120 months’ imprisonment following his
    guilty   plea   to   a   single   count    of   possession      with    intent    to
    distribute at least five grams of cocaine base, in violation of 
    21 U.S.C. § 841
    (a)(1) (2000).           Washington’s counsel 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 (1) Washington was impermissibly sentenced in accordance
    with the statutory minimum and (2) Washington received ineffective
    assistance of counsel.        We affirm.
    In his plea agreement, Washington waived all rights to
    appeal except for ineffective assistance of counsel, prosecutorial
    misconduct, or the sentence to the extent one or more findings on
    the   guideline      issues   were    inconsistent       with     the    explicit
    stipulations contained in the plea agreement. After a thorough and
    comprehensive Fed. R. Crim. P. 11 plea colloquy, the district court
    accepted Washington’s plea as knowing and voluntary.
    Pursuant to U.S. Sentencing Guidelines Manual (“USSG”) §
    2D1.1(c)(7)     (2004),   a   base   offense     level   of     twenty-six       was
    assigned, based on a drug quantity of at least five grams, but not
    more than twenty grams, of cocaine base.            A three-level reduction
    for acceptance of responsibility was applied to the base offense
    level, rendering a total offense level of twenty-five.                       USSG
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    § 3E1.1(a),(b). Based on a total offense level of twenty-three and
    a   criminal   history    category    of     V,   Washington’s      recommended
    guideline range was 84 to 105 months’ imprisonment.              Nevertheless,
    Washington was sentenced to the statutory minimum term for this
    offense, 120 months’ imprisonment.           See 
    21 U.S.C. §§ 841
    (b)(1)(B)
    and 851 (2000).
    Washington’s claim that he was inappropriately sentenced
    in accordance with the statutory minimum is without merit. As this
    court recently made clear in United States v. Robinson, 
    404 F.3d 850
    , 862 (4th Cir.), cert. denied, 
    126 S. Ct. 288
     (2005), “[United
    States v. Booker, 
    125 S. Ct. 738
     (2005),] did nothing to alter the
    rule that judges cannot depart below a statutorily provided minimum
    sentence.” Section 841(b)(1)(B)’s enhanced penalty provision reads
    in relevant part: “If any person commits such a violation [of this
    subparagraph] after a prior conviction for a felony drug offense
    has become final, such person shall be sentenced to a term of
    imprisonment which may not be less than ten years.”                 Washington
    pled guilty under § 841(a) and he admitted to the predicate offense
    for   the   enhanced     penalty   provision      at   the   plea     colloquy.
    Accordingly, the application of § 841(b(1)(B)’s enhanced penalty
    provision to Washington is clear and unequivocal.                    Thus, the
    district court was required by statute to impose the mandatory
    minimum term of imprisonment, and there is no Booker error.                See
    Robinson, 
    404 F.3d at 862
     (“[Even after Booker], a district court
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    has no discretion to impose a sentence outside of the statutory
    range established by Congress for the offense of conviction.”).
    Washington’s claim of ineffective assistance of counsel
    is equally unavailing.     A claim of ineffective assistance of
    counsel generally should be asserted on collateral review rather
    than on direct appeal, unless ineffective assistance is apparent on
    the face of the record.   United States v. King, 
    119 F.3d 290
    , 295
    (4th Cir. 1997). To succeed on claims of ineffective assistance of
    counsel, a defendant must show that his counsel’s performance fell
    below an objective standard of reasonableness, and his counsel’s
    deficient performance was prejudicial.   Strickland v. Washington,
    
    466 U.S. 668
    , 687-88 (1984).     Turning to the second prong of
    Strickland in the context of a guilty plea, a defendant must
    demonstrate that there is a reasonable probability that, but for
    counsel’s unprofessional errors, he would not have pleaded guilty
    and would have insisted on going to trial.   Hill v. Lockhart, 
    474 U.S. 52
    , 59 (1985).   Washington’s claim of ineffective assistance
    fails because he fails to make such a showing on the face of the
    record on appeal.
    Finding no meritorious issues upon our review of the
    record, we affirm Washington’s conviction 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
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    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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