UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4620
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SAMUEL CLINT BLANCHER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Lacy H. Thornburg,
District Judge. (CR-02-4; CR-03-7)
Submitted: May 31, 2006 Decided: July 6, 2006
Before WILLIAMS and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael A. Kolb, MICHAEL A. KOLB, Charlotte, North Carolina, for
Appellant. Robert J. Conrad, Jr., United States Attorney, Anne M.
Tompkins, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Samuel Clint Blancher appeals from the 188-month sentence
imposed upon his guilty plea to two counts of armed bank robbery,
18 U.S.C. § 2113(a) (2000). Blancher’s attorney has filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious issues for appeal but
addressing the following potential issues: (1) whether the
district court properly complied with Fed. R. Crim. P. 11 in
accepting Blancher’s guilty plea; (2) whether the district court
properly concluded that Blancher qualified for the career offender
enhancement, U.S. Sentencing Guidelines Manual § 4B1.1 (2000); and
(3) whether the government engaged in prosecutorial misconduct.
Blancher has filed a supplemental pro se brief raising the
following claims: (1) his plea was not knowing and voluntary
because his attorney coerced him into pleading guilty; (2) the
calculation of his criminal history points violates the Ex Post
Facto clause; (3) his attorney was ineffective; and (4) his
sentence violates United States v. Booker, 543 U.S. 220 (2005),
because it was enhanced based on judicial factfinding and because
of the mandatory nature of the guidelines as applied by the
district court. We affirm.
Counsel first addresses whether the district court
properly complied with Rule 11 in conducting Blancher’s guilty plea
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hearing. Our review of Blancher’s guilty plea hearing discloses
that the district court fully complied with Rule 11.
Next, counsel challenges Blancher’s sentence as a career
offender. Because Blancher did not object in the district court,
this court’s review is for plain error. United States v. Harp, 406
F.3d 242, 245 (4th Cir.) (discussing standard), cert. denied, 126
S. Ct. 297 (2005). In order for Blancher to be designated a career
offender, the government had to demonstrate that he was at least
eighteen at the time of the instant offense and that he had at
least two prior felony convictions for either a “crime of violence”
or a “controlled substance offense.” USSG § 4B1.1(a). We find
that the district court properly classified Blancher as a career
offender. He was twenty-eight years old at the time of the instant
offense and had at least six prior convictions for violent
felonies. Counsel also addresses whether the government engaged in
prosecutorial misconduct. However, counsel does not identify any
evidence of prosecutorial misconduct and our review of the record
discloses none.
In his supplemental pro se brief, Blancher first claims
that his plea was involuntary because his attorney coerced him into
pleading guilty. A defendant’s statements at the Rule 11 hearing
are presumed to be true. Blackledge v. Allison, 431 U.S. 63, 73-74
(1977). Unsupported allegations on appeal are insufficient to
overcome representations at arraignment. See United States v.
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DeFusco, 949 F.2d 114, 119 (4th Cir. 1991) (stating that
defendant’s statement at Rule 11 hearing that he was neither
coerced nor threatened was “strong evidence of the voluntariness of
his plea”); Via v. Superintendent, Powhatan Corr. Ctr., 643 F.2d
167, 171 (4th Cir. 1981) (holding that statements made at plea
hearing that facially demonstrate plea’s validity are conclusive
absent compelling reason why they should not be, such as
ineffective assistance of counsel). Under these authorities,
Blancher’s plea was voluntary. His claim that his attorney coerced
him is wholly unsupported and contradicts his representations at
his guilty plea hearing.
Next, Blancher asserts that his sentence as a career
offender violates the Ex Post Facto clause. However, the use of
prior crimes as predicate offenses for purposes of the career
offender enhancement does not constitute an ex post facto
violation. See California Dep’t of Corr. v. Morales, 514 U.S. 499,
504 (1995). Blancher also contends that trial counsel provided
ineffective assistance. Claims of ineffective assistance of
counsel generally should be asserted on collateral review rather
than on direct appeal, unless proof of the claimed ineffective
assistance is apparent on the face of the record. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir.), cert. denied, 126 U.S.
1407 (2006). Because the record does not support Blancher’s claims
that counsel was ineffective, we decline to address the claims in
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this appeal.
Finally, Blancher challenges his sentence under United
States v. Booker. Blancher argues that his prior convictions were
used to enhance his sentence but were not proved beyond a
reasonable doubt. However, prior convictions are not subject to
the Sixth Amendment requirements articulated in Booker. United
States v. Cheek, 415 F.3d 349, 352-53 (4th Cir.), cert. denied, 126
S. Ct. 640 (2005). Nor did the district court commit reversible
error in sentencing Blancher under the mandatory guidelines. In
United States v. White, 405 F.3d 208, 215 (4th Cir.), cert. denied,
126 S. Ct. 668 (2005), we determined that imposing a sentence under
the guidelines as mandatory constitutes plain error. However, a
defendant who seeks resentencing on this ground must show actual
prejudice, i.e., a “nonspeculative basis for concluding that the
treatment of the guidelines as mandatory ‘affect[ed] the district
court’s selection of the sentence imposed.’” Id. at 223 (quoting
Williams v. United States, 503 U.S. 193, 203 (1992)). Blancher has
failed to meet this burden because he does not provide any
nonspeculative evidence or argument demonstrating that he would
have received a lower sentence had the district court appreciated
that the guidelines were not mandatory.
In accordance with the requirements of Anders, we have
reviewed the entire record in this case and have found no
meritorious issues for appeal. Accordingly, we grant Blancher’s
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motion to file a supplemental pro se brief and we affirm Blancher’s
conviction and sentence. Counsel has moved to withdraw from
further representation. We deny the motion at this juncture. 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 a petition be filed, but counsel
believes such a petition would be frivolous, then counsel may move
in this court for leave to withdraw from representation at that
time. 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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