UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4110
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY BLACKWOOD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Shelby. Lacy H. Thornburg, District
Judge. (CR-96-53)
Submitted: August 3, 2005 Decided: September 16, 2005
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Tony E. Rollman, Asheville, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Thomas R. Ascik,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Anthony Blackwood was convicted by a jury in June 1997 of
one count of conspiracy to manufacture, distribute, and possess
with intent to distribute cocaine and cocaine base (crack), in
violation of 21 U.S.C. § 846 (2000), and sentenced to 240 months
imprisonment. Blackwood noted a timely appeal but, because the
transcript of his sentencing hearing was lost, this court granted
Blackwood’s motion to remand for resentencing. In January 2004,
the district court held a new sentencing hearing and resentenced
Blackwood to 240 months imprisonment but granted the Government’s
Fed. R. Crim. P. 35 motion, resulting in a 180-month sentence.
Blackwood has noted a timely appeal.
Blackwood’s attorney filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), addressing whether the
district court improperly applied a two-level enhancement for
obstruction of justice, U.S. Sentencing Guidelines Manual § 3C1.1
(2000). We granted counsel’s motion to file a supplemental brief
addressing whether the enhancement violated United States v.
Booker, 125 S. Ct. 738 (2005). Blackwood has filed a supplemental
pro se brief in which he also claims that: (1) the district court
erred in applying the two-level enhancement for his role in the
offense, USSG § 3B1.1 (2000); (2) the prosecutor made improper
remarks during opening and closing arguments; and (3) he was denied
effective assistance of counsel at resentencing. For the reasons
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that follow, we affirm Blackwood’s conviction but vacate his
sentence and remand for resentencing.
At sentencing, and over his objection, Blackwood received
a two-level enhancement for his role in the offense, pursuant to
USSG § 3B1.1(c). Blackwood also received a two-level enhancement
for obstruction of justice, USSG § 3C1.1, based on the district
court’s finding that Blackwood testified falsely that he was
mistreated, coerced, and threatened by law enforcement personnel.
Blackwood’s base offense level was determined to be 34.1 After
applying the two, two-level enhancements referenced above,
Blackwood’s total offense level was 38; with a criminal history
category of I, the resulting guidelines range was 235-293 months
imprisonment. Without those enhancements, the applicable range
would have been 151-188 months imprisonment.
Blackwood claims, in his supplemental briefs, that the
enhancements he received for his role in the offense and for
obstruction of justice violated the decision announced by the
Supreme Court in Booker. Because Blackwood did not raise this
issue at sentencing, his argument is reviewed for plain error.
United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005) (citing
United States v. Olano, 507 U.S. 725, 731-32 (1993)).
1
Blackwood does not challenge the quantity of drugs used to
determine his base offense level of 34.
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The Supreme Court held in Booker, 125 S. Ct. at 746, 750,
that the mandatory manner in which the federal sentencing
guidelines required courts to impose sentencing enhancements based
on facts found by the court by a preponderance of the evidence
violated the Sixth Amendment. The Court remedied the
constitutional violation by severing two statutory provisions, 18
U.S.C. § 3553(b)(1) (2000) (requiring courts to impose a sentence
within the applicable guideline range), and 18 U.S.C. § 3742(e)
(2000) (setting forth appellate standards of review for guideline
issues), thereby making the guidelines advisory. Hughes, 401 F.3d
at 546 (citing Booker, 125 S. Ct. at 756-57).
After Booker, courts must calculate the appropriate
guideline range, consider the range in conjunction with other
relevant factors under the guidelines and 18 U.S.C. § 3553(a), and
impose a sentence. If a district court imposes a sentence outside
the guideline range, the court must state its reasons for doing so.
Id. This remedial scheme applies to any sentence imposed under the
mandatory guidelines, regardless of whether or not the sentence
violates the Sixth Amendment. Id. at 547. (citing Booker, 125 S.
Ct. at 769).
In this case, the district court increased Blackwood’s
base offense level from 34 to 38 after finding, by a preponderance
of the evidence, that his conduct met the requirements of both
§§ 3B1.1 and 3C1.1. With these enhancements, Blackwood’s
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sentencing range increased from 151-188 months to 235-293 months.
Accordingly, because the enhancement occurred under a mandatory
guidelines scheme, the district court committed plain error that
warrants correction. Hughes, 401 F.3d at 547-56.2 Therefore, we
vacate Blackwood’s sentence and remand for resentencing.
Blackwood also claims in his supplemental pro se brief
that the prosecutor made improper comments during opening and
closing arguments. Because the transcript of Blackwood’s trial does
not include the attorneys’ opening or closing arguments, we have
assumed that Blackwood’s characterization of those comments is
accurate. According to Blackwood, the prosecutor stated that: (1)
“there is a habitual drug dealer in this courtroom today,” (2)
Blackwood “presents greater danger to the public and/or is more
likely to strike repeatedly,” (3) Blackwood was charged with drug
offenses in other states, (4) Blackwood’s actions were “vicious,”
and (5) Blackwood was a deportable alien. Also, Blackwood claims
that the prosecutor “mischaracterized Blackwood’s description of
his experience in the hands of the police as utterly wicked.”
A claim of prosecutorial misconduct is reviewed to
determine whether the conduct complained of so infected the trial
2
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Blackwood’s sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).
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with unfairness as to make the resulting conviction a denial of due
process. United States v. Scheetz, 293 F.3d 175, 185 (4th Cir.
2002). To prevail under this standard, Blackwood must show that
“the prosecutor’s remarks or conduct were improper and, second
. . . that such remarks or conduct prejudicially affected his
substantial rights” so as to deprive him of a fair trial. Id.
Whether prejudice exists is in turn established by the following:
(1) the degree to which the prosecutor’s remarks had a tendency to
mislead the jury; (2) whether the remarks were isolated or
extensive; (3) the strength of competent proof introduced to
establish defendant’s guilt; (4) whether the prosecutor’s remarks
were invited by the improper conduct of defense counsel; and (6)
whether curative instructions were given. Id. at 186. No one
factor is dispositive. United States v. Wilson, 135 F.3d 291, 299
(4th Cir. 1998).
Because Blackwood’s claims were not preserved at trial,
the standard is modified to the degree that he must demonstrate
plain error. Olano, 507 U.S. at 732-34. We find that Blackwood
cannot establish error, let alone plain error. Even assuming the
accuracy of Blackwood’s description of the statements made by the
prosecutor, none of the comments alone or in combination
established the requisite level of prejudice. According to
Blackwood, the statements were isolated comments made only in
closing and/or opening arguments. The court properly instructed
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the jury to consider as evidence only the testimony of witnesses
who were called to testify and the exhibits which were admitted
into evidence. The jury is presumed to follow the instructions
provided them. United States v. Francisco, 35 F.3d 116, 119 (4th
Cir. 1994). Moreover, “it is undisputed that closing argument is
not merely a time for recitation of uncontroverted facts, but
rather the prosecution may make fair inferences from the evidence.”
Id. at 120. See also United States v. Brainard, 690 F.2d 1117,
1122 (4th Cir. 1982) (stating that closing arguments may include
reasonable inferences from the evidence). Accordingly, Blackwood
cannot show prosecutorial misconduct.
Blackwood also argues that he was denied effective
assistance of counsel during his resentencing and appeal.
Ineffective assistance claims are not generally addressed on direct
appeal unless it appears conclusively from the record that the
appellant received ineffective assistance of counsel. United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Because
the record does not conclusively establish counsel’s
ineffectiveness, we conclude that Blackwood’s claims must be
brought, if at all, in a proceeding under 28 U.S.C. § 2255 (2000).
As required by Anders, we have reviewed the entire record
and have found no other meritorious issues for appeal. We
therefore affirm Blackwood’s conviction; we vacate his sentence and
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remand for resentencing consistent with Booker and Hughes.3 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 IN PART,
VACATED IN PART,
AND REMANDED
3
We grant the Government’s unopposed motion to remand. We
deny Blackwood’s motion to withdraw the Anders brief.
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