United States v. Lance , 296 F. App'x 303 ( 2008 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 08-4546
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    KEITH JERMAINE LANCE,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    South Carolina, at Charleston. David C. Norton, District Judge.
    (2:07-cr-01116-DCN-1)
    Submitted:   September 18, 2008           Decided:   October 14, 2008
    Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit
    Judge.
    Affirmed by unpublished per curiam opinion.
    Mary Gordon Baker, Assistant Federal Public Defender, Charleston,
    South Carolina, for Appellant. Peter Thomas Phillips, Assistant
    United States Attorney, Charleston, South Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    In accordance with a plea agreement, Keith Jermaine
    Lance, Jr., pled guilty to possession with intent to distribute
    fifty grams or more of crack cocaine, 
    21 U.S.C. § 841
    (a)(1) (2000),
    and   using    and    carrying   a   firearm      in   connection    with   a    drug
    trafficking crime, 
    18 U.S.C. § 924
    (c)(1)(A)(I) (2000).                   Lance was
    sentenced to 120 months in prison for the drug offense and received
    a consecutive sixty-month sentence for the firearm offense. He now
    appeals. His attorney has filed a brief pursuant to Anders v.
    California, 
    386 U.S. 738
     (1967), raising two issues but stating
    that there are no meritorious issues for appeal.                     Lance raises
    additional issues in his pro se supplemental brief.                   We affirm.
    In the Anders brief, counsel first questions whether the
    district court complied with Fed. R. Crim. P. 11 but concludes that
    it did.       Our review of the transcript of Lance’s arraignment
    discloses full compliance with the Rule.                  Further, the transcript
    reveals   that       Lance   entered    his       guilty    plea    intelligently,
    voluntarily     and    knowingly,    with     a    full    understanding    of   the
    consequences of his plea.
    In his pro se brief, Lance suggests that his convictions
    are invalid because he was not served with search warrants and was
    not provided the audio recordings of two of his drug transactions.
    These claims are not cognizable because Lance’s valid guilty plea
    waives any prior, nonjurisdictional defects.                       See Tollett v.
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    Henderson, 
    411 U.S. 258
    , 267 (1973); United States v. Bundy, 
    392 F.3d 641
    , 644-45 (4th Cir. 2004).
    We turn next to Lance’s sentence.       For the drug offense,
    Lance’s Guidelines range as initially calculated was 70-87 months.
    However, because Lance was statutorily subject to a minimum of ten
    years in prison for this offense, see 
    21 U.S.C.A. § 841
    (b)(1)(A)
    (West 1999 & Supp. 2008), his Guidelines range became 120 months.
    See U.S. Sentencing Guidelines Manual § 5G1.1(b)(1)(A)(iii) (2000).
    The district court sentenced Lance to 120 months for this crime.
    The court also imposed the statutorily mandated consecutive five-
    year   sentence    for   the     firearm   offense.      See   
    18 U.S.C. § 924
    (c)(1)(A)(I).
    Counsel contends that the statutory minimum sentences set
    forth in § 841(b) violate the Equal Protection Clause.         As counsel
    acknowledges,     however,     we   have   previously   rejected    similar
    constitutional challenges to the statute.          See United States v.
    Fisher, 
    58 F.3d 96
    , 99-100 (4th Cir. 1995); United States v.
    D’Anjou, 
    16 F.3d 604
    , 613-14 (4th Cir. 1994).
    Counsel also argues that the statutory minimum sentences set
    forth in § 841(b) should not survive judicial scrutiny in light of
    recent amendments to the sentencing guidelines, which lowered the
    offense levels for drug offenses involving crack cocaine. See U.S.
    Sentencing Guidelines Manual § 2D1.1(c) (2007 & Supp. 2008); USSG
    App. C Amend. 706, 711.      The Supreme Court recently observed that,
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    after the amendments, “sentencing courts remain bound by the
    mandatory minimum sentences prescribed [by statute].” Kimbrough v.
    United States, 
    128 S. Ct. 558
    , 573 (2007). Accordingly, this claim
    is without merit.
    We   review   a   criminal    sentence    for   reasonableness,
    applying the abuse of discretion standard.         Gall v. United States,
    
    128 S. Ct. 586
    , 594-97 (2007); see also United States v. Go, 
    517 F.3d 216
    , 218 (4th Cir. 2008).         The appellate court must first
    determine whether the district court committed any “significant
    procedural error.” Gall, 
    128 S. Ct. at 597
    .               The court then
    considers the substantive reasonableness of the sentence, and may
    apply a presumption of reasonableness to a sentence within the
    Guidelines range.   Go, 
    517 F.3d at 218
    ; see also Gall, 
    128 S. Ct. at 597
    ; Rita v. United States, 
    127 S. Ct. 2456
     (2007) (approving
    presumption of reasonableness).
    Here, with respect to the drug offense, the district court
    correctly calculated Lance’s advisory Guidelines range of 120
    months, considered that range in conjunction with the factors set
    forth at 
    18 U.S.C.A. § 3553
    (a) (West 2000 & Supp. 2008),* and
    sufficiently explained its reason for imposing sentence.             See
    United States v. Pauley, 
    511 F.3d 468
    , 473 (4th Cir. 2007).
    *
    In sentencing Lance, the district court considered the
    presentence report, which addressed matters such as Lance’s
    background and criminal history, and heard from Lance, his
    attorney, and family members.
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    Lance’s sentence of 120 months is presumptively reasonable under Go
    and Gall.     His consecutive five-year sentence for the firearm
    offense was statutorily mandated.             We recently observed that “[a]
    statutorily required sentence . . . is per se reasonable.”                   United
    States v. Farrior, 
    535 F.3d 210
    , 224 (4th Cir. 2008).                  We conclude
    that Lance’s sentence is reasonable.
    Lance claims in his pro se supplemental brief that his
    attorney was ineffective. To allow for adequate development of the
    record, a claim of ineffective assistance of counsel ordinarily
    must   be   raised   in    a    
    28 U.S.C. § 2255
       (2000)   motion    unless
    ineffectiveness conclusively appears on the face of the record.
    United States v. Richardson, 
    195 F.3d 192
    , 198 (4th Cir. 1999).
    Here, the record does not establish ineffective representation.
    We have examined the entire record in this case in
    accordance    with   the       requirements       of   Anders,   and   we   find   no
    meritorious issues for appeal. Accordingly, we affirm. This court
    requires 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, counsel may move
    in this court for leave to withdraw from representation. Counsel’s
    motion must state that a copy of the motion was served on the
    client. We dispense with oral argument because the facts and legal
    5
    contentions are adequately presented in the materials before the
    court and argument would not aid the decisional process.
    AFFIRMED
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