UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4831
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GEORGE CARTER,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (3:05-cr-00068-WCB)
Submitted: July 31, 2007 Decided: August 17, 2007
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Barry P. Beck, POWER, BECK & MATZUREFF, Martinsburg, West Virginia,
for Appellant. Paul Thomas Camilletti, OFFICE OF THE UNITED STATES
ATTORNEY, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George Carter appeals from his conviction and fifty-seven
month sentence after pleading guilty to conspiracy to use a firearm
in connection with a drug trafficking crime, in violation of 18
U.S.C. § 371 (2000). On appeal, Carter’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there are no meritorious issues on appeal, but asking the
court to review the adequacy of the Fed. R. Crim. P. 11 hearing,
the district court’s refusal to grant Carter a downward adjustment
based on his minor role in the conspiracy, and the reasonableness
of the sentence. Carter has also filed a pro se supplemental
brief, in which he makes a series of claims regarding ineffective
assistance of counsel, government misconduct, and the sufficiency
of his Rule 11 hearing. Because our review of the record discloses
no reversible error, we affirm.
Carter’s first issue on appeal is whether the district
court failed to comply with the requirements of Fed. R. Crim. P. 11
in conducting his guilty plea hearing. Because Carter did not move
in the district court to withdraw his guilty plea, any challenges
to the Rule 11 hearing are reviewed for plain error. See United
States v. Martinez, 277 F.3d 517, 524 (4th Cir. 2002).
After a thorough review of the record, we find that there
were no errors with respect to the Rule 11 plea colloquy. During
the plea hearing, the district court properly informed Carter of
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the rights that he was forfeiting as a result of his plea and the
nature of the charges and penalties that he faced, determined the
voluntariness of his guilty plea, and disclosed the terms of the
plea agreement on the record. The district court also received
testimony from Special Agent Doug Dean, who stated that Carter’s
role in the conspiracy was that of an intermediary between the
seller of the AK-47 and the purchaser. Based on Agent Dean’s
testimony, the district court determined that there was a
sufficient factual basis for the plea. Accordingly, the record
establishes that Carter knowingly and voluntarily entered into his
guilty plea with a full understanding of the consequences, that
there was a sufficient factual basis for the plea, and that there
was no error in the district court’s acceptance of Carter’s plea.*
Carter next raises whether the district court’s denial of
his request for a minor role downward adjustment was proper. We
*
In his pro se supplemental brief, Carter claims that he did
not understand the nature of the 18 U.S.C. § 924(c) (2000) charge
brought against him and that there was not a sufficient factual
basis to support his plea on this charge. However, Carter was
never charged with a violation of § 924(c); rather, he was charged
with conspiracy to commit a violation of § 924(c). During the Rule
11 hearing, the district court detailed the elements necessary to
prove a conspiracy under 18 U.S.C. § 371, and also noted that the
object of the conspiracy was to violate § 924(c). Carter
subsequently stated, under oath, that he understood the nature of
the conspiracy charge. That statement is accorded a strong
presumption of truth. Blackledge v. Allison, 431 U.S. 63, 74
(1977). Moreover, the district court was not required to find that
the object of the conspiracy was achieved, only that Carter and the
co-conspirators agreed to achieve it and committed an overt act in
furtherance of the plan. See United States v. Tucker, 376 F.3d
236, 238 (4th Cir. 2004).
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review this claim for clear error. United States v. Daughtrey, 874
F.2d 213, 218 (4th Cir. 1989). A defendant who is only a “minor
participant” in a criminal activity may have his offense level
reduced by two levels. U.S. Sentencing Guidelines Manual (USSG)
§ 3B1.2(b) (2005). This applies to a defendant “who is less
culpable than most other participants, but whose role could not be
described as minimal.” USSG § 3B1.2(b), comment. (n.5).
The district court denied the request for a minor role
adjustment on the grounds that Carter was a “key participant” in
the conspiracy and that it would not have occurred without his
involvement. Based on Agent Dean’s testimony and the findings in
the presentence report, we conclude that the district court
correctly determined that Carter was not a minor participant.
Carter served as the necessary middleman in this transaction, as he
sought out the eventual purchaser and received compensation for his
involvement in the exchange. Therefore, the district court
correctly determined that Carter’s conduct failed to warrant a
minor role sentencing reduction.
Carter also questions whether the sentence imposed by the
district court was reasonable. After United States v. Booker, 543
U.S. 220 (2005), a sentencing court is no longer bound by the range
prescribed by the sentencing guidelines. See United States v.
Hughes, 401 F.3d 540, 546 (4th Cir. 2005). In a post-Booker
sentencing such as the one at issue, the district court must
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calculate the appropriate guidelines range, consider that range in
conjunction with other relevant factors under the guidelines and 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and impose a sentence.
United States v. Green, 436 F.3d 449, 455-56 (4th Cir.), cert.
denied, 126 S. Ct. 2309 (2006). A post-Booker sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Hughes, 401 F.3d at 546-47 (citations omitted). “[A] sentence
within the properly calculated guidelines range . . . is
presumptively reasonable.” Green, 436 F.3d at 457 (internal
quotation marks and citation omitted); see Rita v. United States,
127 S. Ct. 2456 (2007).
In this case, Carter faced a maximum sentence of five
years’ incarceration. Based on an offense level of 17 and a
criminal history category of VI, the district court calculated the
sentencing guidelines range to be 51 to 60 months. Carter’s
sentence of 57 months’ incarceration was within the guidelines
range and below the statutory maximum; therefore, Carter’s sentence
is presumptively reasonable. The district court determined that
Carter’s involvement in the instant offense was of a “very serious
nature,” and, after taking the § 3553(a) factors into account,
sentenced Carter in the middle of the guidelines range. Based on
the district court’s correct calculation of the guidelines range
and its consideration of the § 3553(a) factors, we find that the
sentence imposed by the court was reasonable.
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In his pro se supplemental brief, Carter makes various
claims regarding the effectiveness of his trial counsel. 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 fairly adjudicated on direct appeal where the
appellant has not raised the issue before the district court and
there is no statement from counsel on the record. United States v.
DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). Because there is no
evidence on the record to support Carter’s ineffective assistance
allegations, Carter’s claims should be raised as part of a § 2255
motion rather than on direct appeal.
Carter also makes various charges of prosecutorial
misconduct, claiming that the Government lied to the court about
its knowledge of the case, withheld exculpatory evidence and
favorable testimony from numerous witnesses, and was biased and
vindictive in its investigation and prosecution. However, Carter
provides no evidence or elaboration to support these conclusory
charges, nor does he give any explanation as to the nature of the
allegedly exculpatory testimony and evidence. See United States v.
Ellis, 121 F.3d 908, 915 (4th Cir. 1997) (defendant must
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demonstrate that undisclosed evidence was material and would have
been favorable to his defense).
Finally, Carter contends that the district court violated
his equal protection rights by failing to carry out its ministerial
duties, erred in accepting his guilty plea before determining
whether the § 924(c) violation was actually completed, and
erroneously denied his request for an evidentiary hearing. As
detailed previously, Carter was never charged with a violation of
§ 924(c); rather, the references to § 924(c) in the indictment and
his hearings related to the object of the conspiracy rather than a
separate offense. As for the district court’s denial of his
request for an evidentiary hearing, Carter alleges that this
“prevented an appropriate preparation for a trial.” However,
Carter fails to explain why the district court erred in denying his
request or how the court’s ruling prejudiced the preparation of his
defense. Carter similarly alleges that the district court failed
to carry out its “ministerial duties,” but again fails to provide
any further explanation to support his claim. Finally, Carter’s
guilty plea forecloses any attack on antecedent, non-jurisdictional
errors. Tollett v. Henderson, 411 U.S. 258, 267 (1973).
Therefore, we find Carter’s claims to be meritless.
In accordance with Anders, we have reviewed the record
and have found no meritorious issues for appeal. We therefore
affirm Carter’s conviction and sentence. We deny counsel’s motion
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to withdraw 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
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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