United States v. Harris , 386 F. App'x 449 ( 2010 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 10-4029
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    MONELLE TERROD HARRIS,
    Defendant - Appellant.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Greensboro. William L. Osteen,
    Jr., District Judge. (1:08-cr-00330-WO-1)
    Submitted:   June 24, 2010                 Decided:   June 30, 2010
    Before DUNCAN, AGEE, and DAVIS, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Louis C. Allen, Federal Public Defender, William C. Ingram, Jr.,
    First Assistant Federal Public Defender, Greensboro, North
    Carolina, for Appellant.     Michael Francis Joseph, Assistant
    United   States  Attorney,   Greensboro,  North   Carolina,  for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Monelle Terrod Harris appeals from his conviction and
    200-month total sentence imposed following his guilty plea to
    conspiracy to distribute cocaine base, possession with intent to
    distribute cocaine base, possession of a firearm during and in
    relation   to   a   drug    trafficking     offense,   and   possession   of   a
    firearm by a person previously convicted of a felony.                 Harris’
    attorney filed a brief pursuant to Anders v. California, 
    386 U.S. 738
    (1967), addressing the reasonableness of the sentence,
    but stating that, in his opinion, there was no merit to the
    appeal.    Harris filed a pro se brief challenging the use of the
    100-to-1 crack cocaine-to-powder cocaine sentencing ratio, the
    consecutive     nature     of   his   sentence   for   the   possession   of   a
    firearm in furtherance of a drug trafficking offense, and the
    reasonableness of his ten-year supervised release term.               He also
    asserts that counsel was ineffective at sentencing.                Our review
    of the record discloses no reversible error; accordingly, we
    affirm Harris’ conviction and sentence.
    We find that Harris’ guilty plea was knowingly and
    voluntarily entered after a thorough hearing pursuant to Fed. R.
    Crim. P. 11.        Harris was properly advised of his rights, the
    offenses charged, and the mandatory minimum sentences he faced.
    The district court also determined that there was an independent
    factual basis for the plea and that the plea was not coerced or
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    influenced by any promises.          See United States v. DeFusco, 
    949 F.2d 114
    , 119-20 (4th Cir. 1991).
    The court reviews Harris’ sentence for reasonableness
    under a deferential abuse-of-discretion standard.                  See Gall v.
    United States, 
    552 U.S. 38
    , 51 (2007).            In reviewing a sentence,
    this court must first ensure that the district court properly
    calculated the defendant’s advisory guidelines range, considered
    the 18 U.S.C. § 3553(a) (2006) factors, analyzed the arguments
    presented      by   the   parties,      and   sufficiently    explained     the
    selected sentence.        United States v. Carter, 
    564 F.3d 325
    , 330
    (4th   Cir.    2009).     The   court    then   considers    the    substantive
    reasonableness of the sentence imposed under the totality of the
    circumstances.      
    Gall, 552 U.S. at 51
    .
    We find the district court correctly determined that
    Harris’ advisory guidelines range was 168 to 210 months on the
    drug   charges,      provided   an      individualized   analysis      of   the
    § 3553(a) factors as they apply to Harris’ circumstances, and
    analyzed the arguments presented by the parties.                   The district
    court granted Harris’ request for a downward variance from the
    advisory guidelines range based on the fact that Harris’ offense
    level was increased due to his voluntary admission to greater
    drug quantities.        The court also considered Harris’ argument for
    a variance sentence in light of Kimbrough v. United States, 
    552 U.S. 85
    (2007) (holding that district courts may consider the
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    crack-to-powder-cocaine guideline sentencing ratio as a possible
    basis for variance from the guidelines) and acknowledged its
    discretion to impose a variance sentence, but declined to impose
    a downward variance from the guidelines range on this basis.                           We
    conclude    that      the   district       court     properly      considered    whether
    Kimbrough had any mitigating effect and adequately explained its
    decision.
    We     reject       Harris’       statutory     interpretation      argument
    that   would,      if    accepted,       require      us    to    overturn   our     prior
    decision in United States v. Studifin, 
    240 F.3d 415
    (4th Cir.
    2001) (interpreting 18 U.S.C. § 924(c)’s mandatory consecutive
    sentencing       scheme).          It     is    a    well    settled    part    of    our
    jurisprudence that one panel of this court cannot overrule the
    decision    of    a     prior    panel.        See   generally      United   States     v.
    Collins, 
    415 F.3d 304
    , 311 (4th Cir. 2005).
    Harris also challenges the ten-year supervised release
    term imposed by the district court, asserting that it was twice
    the mandatory term for one of the offenses.                         We find that the
    200-month    total       sentence       and    the   ten-year      supervised    release
    term    imposed          were      not         procedurally        or   substantively
    unreasonable, and therefore not an abuse of discretion.                                See
    
    Gall, 552 U.S. at 51
    .            We therefore affirm Harris’ sentence.
    Finally,        Harris         asserts         that    counsel      provided
    ineffective assistance at sentencing.                       Because the record does
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    not   conclusively        demonstrate          any    deficiency       in     counsel’s
    representation of Harris, we decline to consider these claims on
    direct appeal.         See United States v. Richardson, 
    195 F.3d 192
    ,
    198 (4th Cir. 1999); United States v. King, 
    119 F.3d 290
    , 295
    (4th Cir. 1997).
    As required by Anders, we have reviewed the entire
    record and have found no meritorious issues for appeal.                               We
    therefore affirm Harris’ convictions 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   counsel       believes     that      such   a    petition     would   be
    frivolous,      then   counsel       may   renew     his    motion     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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