Rehearing granted, March 31, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4551
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEMP SHIDER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (CR-02-123)
Submitted: September 29, 2004 Decided: December 6, 2004
Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James H. Moss, MOSS, KUHN & FLEMING, P.A., Beaufort, South
Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, Miller W. Shealy, Jr., Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kemp Shider pled guilty before a magistrate judge to
conspiracy to distribute five kilograms or more of cocaine and
fifty grams or more of cocaine base (crack), 21 U.S.C. § 841(a),
(b)(1)(A) (2000), and was sentenced to a term of 360 months
imprisonment. Shider contends on appeal that his guilty plea
violated Article III of the Constitution and that the magistrate
judge failed to comply with Rule 11 of the Federal Rules of
Criminal Procedure. He challenges the district court’s factual
findings that he was a leader in the conspiracy and possessed a
firearm during the conspiracy, and claims that the court erred in
computing his criminal history. U.S. Sentencing Guidelines Manual
§§ 2D1.1(b)(1), 3B1.1(a), 4A1.1(d) (2002). Shider also alleges
that he received ineffective assistance in connection with his
sentencing. We affirm.
First, we perceive no defect in Shider’s guilty plea.
Shider consented orally and in writing to have the magistrate judge
conduct his guilty plea hearing. He now maintains that the
proceeding before the magistrate judge violated Article III of the
Constitution. He further claims that he was never informed of his
right to have a de novo guilty plea before a district court judge.
We find no merit in these claims. We have held that the Federal
Magistrates Act, 28 U.S.C.A. §§ 631-639 (West 1993 & Supp. 2004),
authorizes a magistrate judge to conduct Rule 11 proceedings.
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United States v. Osborne, 345 F.3d 281, 285 (4th Cir. 2003)
(holding that taking a guilty plea is permissible as “additional
duty” for magistrate judge and that de novo review by a district
court is not required unless parties so demand). Shider made no
objection to the plea colloquy conducted by the magistrate judge
and did not request review, although the magistrate judge informed
him during the Rule 11 hearing that he had a right to proceed
before a district court judge.
Shider also claims that the magistrate judge failed to
inquire adequately into the voluntariness of his guilty plea and
failed to inform him accurately about the sentencing guidelines,
about his right to review the presentence report, and about
supervised release. However, the transcript of the Rule 11 hearing
discloses that the magistrate judge explained the guidelines and
supervised release to Shider. The magistrate judge inquired into
the voluntariness of Shider’s guilty plea as required under Rule
11(a)(2). The Rule does not require that the court inform the
defendant of his right to review the presentence report; in any
event, Shider’s attorney stated at sentencing that he had reviewed
the presentence report with Shider.
Because Shider did not object in the district court to
his criminal history or other aspects of his sentence calculation,
his sentencing claims are reviewed for plain error. Under the
plain error test, United States v. Olano, 507 U.S. 725, 732-37
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(1993), the defendant must show that (1) error occurred; (2) the
error was plain; and (3) the error affected his substantial rights.
Id. at 732. Even when these conditions are satisfied, this Court
may exercise its discretion to notice the error only if the error
“seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. (internal quotation marks omitted).
Shider challenges the addition of two criminal history
points under USSG § 4A1.1(d) for commission of the instant offense
while on probation. He maintains that there was no information in
the presentence report that established his participation in the
conspiracy until after he completed his term of probation on
November 6, 1997. However, in an interview with law enforcement
authorities in July 1997, co-defendant Anthony Randolph reported
that he sold crack for Shider. In his reply brief, Shider
dismisses Randolph’s allegation as irrelevant because, to avoid
double counting, the probation officer did not use the drug
quantities Randolph described to calculate Shider’s base offense
level. We disagree. Because the presentence report contained
uncontested information about Shider’s involvement in the
conspiracy while he was still on probation, the district court did
not plainly err in awarding two criminal history points under
§ 4A1.1(d).
Shider next argues that no information in the presentence
report supports the district court’s finding that he was an
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organizer or leader in the conspiracy. The presentence report
contained ample evidence of Shider’s prominence in the conspiracy.
In particular, co-defendant Eron Overton described Shider as the
second largest drug dealer in Walterboro. Bennie Kelly said that
Shider took over drug distribution in Walterboro when Kelly left.
Kelly thereafter supplied Shider with kilogram quantities of
cocaine, which Shider converted to crack for distribution in the
Walterboro area. Shider also introduced Clay Robinson to a source
from New York who supplied Robinson with two to four ounces of
crack on several occasions during 1997. On these facts, we
conclude that the district court did not plainly err in finding
that Shider was a leader or organizer in the conspiracy.
The district court applied the two-level increase that
must be made if the defendant possessed a firearm “unless it is
clearly improbable that the weapon was connected to the offense.”
USSG § 2D1.1, comment. (n.3). The enhancement is intended to
reflect “the increased danger of violence when drug traffickers
possess weapons.” Id. Shider argues that the enhancement is
unwarranted because the firearm he possessed was registered, he had
a permit to carry it, and there is no information in the
presentence report that he ever used the gun. However, because
there is sufficient evidence in the record that Shider possessed
the firearm while in furtherance of the conspiracy, we are
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satisfied that the district court did not plainly err in making the
enhancement.
Shider contends that his attorney was ineffective in
failing to file objections to the presentence report concerning his
criminal history, the weapon enhancement, and the adjustment for
leader role. He further claims that his attorney was ineffective
in failing to challenge the quantity of drugs attributed to him and
the drug transactions described in the presentence report. Claims
of ineffective assistance are not generally reviewed on direct
appeal. To succeed in a claim of ineffective assistance on direct
appeal, a defendant must show conclusively from the fact of the
record that counsel provided ineffective representation. United
States v. James, 337 F.3d 387, 391 (4th Cir. 2003), cert. denied,
124 S. Ct. 1111 (2004). We conclude that the record in this case
does not conclusively demonstrate that Shider’s attorney rendered
ineffective assistance.
Finally, in his reply brief, Shider argues that the
district court erred in making factual findings that increased his
sentence, citing the Supreme Court’s decision in Blakely v.
Washington, 124 S. Ct. 2531 (2004). We disagree, having recently
held that Blakely “does not affect the operation of the federal
sentencing guidelines.” United States v. Hammoud, ___ F.3d ___,
2004 WL 2005622, at *28 (4th Cir. Sept. 8, 2004) (en banc).
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We therefore affirm the conviction and sentence imposed
by the district court. 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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