UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4376
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BAXTER WORTH PASCHAL, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (1:05-cr-00383-NCT)
Submitted: November 15, 2006 Decided: January 3, 2007
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, William C. Ingram, First
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagner, United States Attorney, Harry L.
Hobgood, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Baxter Worth Paschal, Jr., appeals from his conviction
pursuant to a guilty plea to endeavoring to obstruct and impede the
due administration of the internal revenue laws, in violation of 26
U.S.C. § 7212(a) (2000). Paschal’s counsel filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but raising the issue of
whether Paschal’s sentence was reasonable. Paschal was given an
opportunity to file a supplemental pro se brief, and has made
numerous allegations regarding his conviction and sentence.
Because our review of the record discloses no reversible error, we
affirm.
Paschal’s first issue on appeal is that his sentence is
unreasonable, contending that the district court’s findings were
based on “insufficient and inadequate allegations and proof.”
Paschal alleges that the district court relied on the “inaccurate”
testimony of IRS Agent Thomas Beers, who was “incompetent” to
testify because he lacked accurate personal knowledge of the events
and admitted that he did not bring the necessary documents to the
hearing.
This court reviews the imposition of a sentence for
reasonableness. United States v. Booker, 543 U.S. 220, 260-61
(2005); United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir.
2005). After Booker, courts must calculate the appropriate
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guideline range, making any appropriate factual findings. United
States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006). The court
then should consider the resulting advisory guideline range in
conjunction with the factors under 18 U.S.C.A. § 3553(a) (West 2000
& Supp. 2006), and determine an appropriate sentence. Davenport,
445 F.3d at 370. A post-Booker sentence may be unreasonable for
procedural and substantive reasons. “A sentence may be
procedurally unreasonable, for example, if the district court
provides an inadequate statement of reasons. . . . A sentence may
be substantively unreasonable if the court relies on an improper
factor or rejects policies articulated by Congress or the
Sentencing Commission.” United States v. Moreland, 437 F.3d 424,
434 (4th Cir.) (citations omitted), cert. denied, 126 S. Ct. 2054
(2006). However, a sentence within the proper advisory guidelines
range is presumptively reasonable. United States v. Green, 436
F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).
At sentencing, Paschal failed to object to the
calculation of the guideline range as laid out in the pre-sentence
report. The district court imposed a sentence of sixteen months’
imprisonment, which is within the advisory guideline range of
twelve to eighteen months and is, therefore, presumptively
reasonable. See Green, 436 F.3d at 457. Paschal has made no
showing that the sentence is procedurally or substantively
unreasonable. The district court judge clearly laid out his
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reasoning, pursuant to 18 U.S.C. § 3553(c) (2000), stating that he
was ready to sentence Paschal at the low end of the guidelines, but
added four months of imprisonment due to Paschal’s continued
attempts to minimize his criminal participation.
While IRS Agent Beers admitted that he did not prepare to
be on the stand, he was called to testify only after the district
court requested further evidence following Paschal’s letter, which
the court deemed to be an evasion of responsibility for the
offense. Agent Beers testified at length on the investigation and
his meeting with Paschal. Paschal was given an opportunity to
respond to Beers’ testimony. The district court’s determination
that Beers was a credible witness is not reviewable on appeal. See
United States v. Hobbs, 136 F.3d 384, 390 n.11 (4th Cir. 1998);
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). As
such, the district court’s decision to impose a sentence in the
middle of the guideline range was reasonable in light of the
testimony and evidence presented.
Paschal next asserts that there was insufficient evidence
to support his guilty plea. A defendant’s statements at a Fed. R.
Crim. P. 11 hearing are presumed to be true. Blackledge v.
Allison, 431 U.S. 63, 73-74 (1977). A knowing and voluntary guilty
plea constitutes an admission of the material elements of the
crime. McCarthy v. United States, 394 U.S. 459, 466 (1969) (Rule
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11 requires the judge to determine that there is a factual basis
for the plea).
During the Rule 11 proceeding, the district court
addressed Paschal directly and made a detailed description as to
the elements of the crime charged and the proof necessary for
conviction. Paschal stated that he understood the nature of his
plea, and after conferring with his counsel, reaffirmed that he had
no questions as to the plea he was entering. Paschal also stated
that he had reviewed the factual basis statement with his attorney,
and that except for a “relatively minor point of disagreement,” the
facts were stated accurately. Paschal now contends that he did not
know that certain documents, described as 433 forms, were going to
be submitted to the IRS, and that he “withdrew” the forms once he
discovered this fact. However, these assertions are contradicted
by the facts agreed to by Paschal as part of his plea agreement, as
well as the testimony of Agent Beers.
Paschal also contends that the 433 forms that were
submitted to the IRS were “not within the purview of 26 U.S.C.
§ 7212,” and that the statute requires “corruptive” behavior that
impedes administration of internal revenue laws. However, the
offense of corruptly obstructing or impeding administration of
internal revenue laws also includes fraud and misrepresentation as
charged in this case. See United States v. Mitchell, 985 F.2d
1275, 1278-79 (4th Cir. 1993).
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Paschal’s third allegation on appeal is that his trial
counsel was ineffective for pressuring him to enter a guilty plea,
failing to prepare properly for the sentencing hearing, incorrectly
advising Paschal as to the sentence he would receive, and
preventing the district court from timely reviewing the mitigating
evidence by mailing it to the wrong address. However, a claim of
ineffective assistance of counsel should be raised in a 28 U.S.C.
§ 2255 (2000) motion with the district court, rather than on direct
appeal, unless the record conclusively demonstrates ineffective
assistance. United States v. King, 119 F.3d 290, 295 (4th Cir.
1997) (internal citations and quotations omitted). Such a claim
cannot be raised on direct appeal where the appellant has not
raised the issue before the district court, as it is unfair to
consider the issue prior to any statement from counsel on the
record. United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.
1991). The record in this case does not conclusively demonstrate
that counsel was ineffective, and therefore we decline to consider
Paschal’s ineffective assistance of counsel claims on direct
appeal.
Paschal’s fourth contention is that the district court
failed to consider the mitigating evidence submitted at the
hearing, specifically letters that were written on his behalf.
While Paschal’s attorney failed to submit these letters prior to
the hearing, the court did accept them for consideration at the
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hearing. It is clear from the record that the letter Paschal wrote
was reviewed by the district court; however, such consideration
ultimately was to his detriment, as the district court stated that
it would have “reluctantly” accepted the Government’s
recommendation of twelve months’ imprisonment absent the letter.
While the transcript does not give any indication as to whether the
district court actually read the letters submitted by Paschal’s son
and former wife, the court did accept all of the letters for
consideration. The district court stated that it was taking
Paschal’s letter into consideration as part of its assessment under
§ 3553(a), and it gave Paschal an additional opportunity to address
the court on the issue of mitigation. See Klingstein v. United
States, 217 F.2d 711, 713 (4th Cir. 1954) (despite allegation that
judge did not read letters offered in mitigation, defendant
properly was given an opportunity to offer evidence and address the
court). Thus, Paschal has failed to demonstrate that the district
court did not consider the mitigating evidence submitted in this
case.
Paschal’s final contention is that the preponderance of
evidence standard used for sentencing determinations should not
apply in his case, and the higher “clear and convincing evidence”
standard should be imposed under the “special circumstances” of his
case. However, this court has authoritatively determined that
sentencing decisions made on the preponderance of the evidence
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comport with the requirements of the Sixth Amendment. See United
States v. Morris, 429 F.3d 65, 71 (4th Cir. 2005), cert. denied,
127 S. Ct. 121, 75 U.S.L.W. 3167 (U.S. Oct. 2, 2006) (No. 05-
11378); see also United States v. Okai, 454 F.3d 848, 852 (8th Cir.
2006) (preponderance of evidence standard does not violate due
process requirements).
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We have
considered the arguments asserted in the pro se brief submitted by
Paschal and find them to be without merit. We therefore affirm
Paschal’s conviction and sentence. This court requires counsel to
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 move in this court
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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