UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4225
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH GRAYSON WARD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (9:02-cr-00002-1)
Submitted: August 22, 2007 Decided: September 6, 2007
Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Timothy C. Kulp, KULP LAW OFFICE, Charleston, South Carolina, for
Appellant. Reginald I. Lloyd, United States Attorney, Carlton R.
Bourne, Jr., Assistant United States Attorney, Charleston, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Grayson Ward pleaded guilty to one count of
conspiracy to possess with intent to distribute and to distribute
fifty grams or more of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2000). During the plea hearing, the Government
provided oral notice of its intent to seek an enhanced minimum
sentence under 21 U.S.C. § 841(b)(1)(A) (2000), based on a prior
felony drug conviction. The district court sentenced Ward to the
statutory minimum 240 months of imprisonment. We affirm.
Ward first argues that the district court erred in
accepting his guilty plea by failing to ensure that an adequate
factual basis was established to support the plea. He asserts that
the factual basis provided by the Government at the plea hearing
was insufficient because it did not include information as to drug
quantity or whether the methamphetamine was actual methamphetamine
or a mixture containing methamphetamine. He also contends this his
admission that his activities involved at least fifty grams of
methamphetamine is not sufficient to establish that the offense
involved fifty grams of actual methamphetamine.
Ward did not seek to withdraw his guilty plea, therefore
we review allegations of error in the plea hearing for plain error.
See United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).
To demonstrate plain error, Ward must establish that error
occurred, that it was plain, and that it affected his substantial
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rights. United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir.
2005). If a defendant satisfies these requirements, the Court’s
“discretion is appropriately exercised only when failure to do so
would result in a miscarriage of justice, such as when the
defendant is actually innocent or the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
Id. at 555 (internal quotation marks and citation omitted).
Ward pleaded guilty to an indictment charging a
conspiracy to distribute and possess with intent to distribute
fifty grams or more of methamphetamine. Contrary to Ward’s
assertions on appeal, his plea is more reasonably interpreted as
encompassing a conspiracy involving actual methamphetamine, as the
indictment did not mention a mixture or substance containing
methamphetamine. Moreover, Ward’s admission that his offense
involved at least fifty grams of methamphetamine, when combined
with the information provided in the Government’s factual basis,
was sufficient to establish all elements of the conspiracy.
Ward also argues that the district court violated Fed. R.
Crim. P. 32(i)(1)(A) because the court did not inquire whether Ward
and his attorney had read the addendum to the presentence report
(PSR). The addendum to the PSR addressed Ward’s exceptions to the
PSR, as there were no objections by the Government. Further review
by Ward of his exceptions was unnecessary. Moreover, counsel’s
acknowledgment that he and Ward had reviewed the PSR is an implicit
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reference to the addendum. We conclude that the district court did
not err in this regard.
Ward next asserts that the district court violated Rule
32(i)(3)(B) in failing to specifically address and resolve Ward’s
exceptions to the PSR. At sentencing counsel informed the court
that there were no further objections and that Ward did not desire
that he argue the filed exceptions at that time, but wanted the
exceptions to be part of the record. Although the district court
erred in failing to make further inquiry to determine whether the
exceptions remained pending for resolution or were waived by Ward,
this error did not prejudice Ward. The district court imposed the
statutory minimum sentence, which negated any Guidelines* error
that was asserted in Ward’s exceptions to the PSR. The court’s
failure to resolve those exceptions had no effect on Ward’s
sentence.
Ward next argues that the district court erred in
enhancing his sentence to a mandatory minimum twenty-year term
because the Government failed to comply with the requirements of 21
U.S.C. § 851 (2000). He asserts that the Government failed to
properly provide written notice of the prior conviction, and that
the information elicited at the plea hearing was insufficient to
identify the conviction that the Government intended to rely on to
enhance his sentence. At the plea hearing, the Government gave
*
U.S. Sentencing Guidelines Manual (2000).
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oral notice of the prior conviction. Ward acknowledged the prior
conviction, provided information about the conviction, and clearly
waived his right to written notice of the intended enhancement of
his sentence based on the conviction. Ward acknowledges these
facts, but asserts that the Government’s failure to comply with
§ 851 deprived the district court of authority to impose an
enhanced sentence. We recently rejected a virtually identical
argument. United States v. Beasley, __ F.3d __, 2007 WL 2121722,
at *3 (4th Cir. July 25, 2007). Our review of the record leads us
to conclude that Ward validly waived the procedural requirements of
§ 851, and there is no question that he was on notice of the prior
conviction in question.
Ward next argues that the district court erred in
enhancing his sentence to a twenty-year mandatory minimum because
the record was insufficient to establish the drug quantity and type
required to invoke the statutory provision under which Ward was
sentenced. This argument is merely a recast of his assertion that
his plea was not supported by a sufficient factual basis regarding
drug quantity and type. Ward’s plea to the indictment after being
advised of the twenty-year mandatory minimum that was based on drug
quantity and type and his prior conviction, coupled with his
specific admission that his conduct involved at least fifty grams
of methamphetamine, were sufficient to establish the statutory
parameters of his sentence. The district court did not err in
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concluding that Ward was subject to the twenty-year mandatory
minimum.
Ward also asserts that the enhancement of his sentence to
a twenty-year minimum was erroneous because the district court
failed to ensure that the record adequately established the fact of
a prior qualifying conviction. In light of Ward’s admission of the
conviction at the plea hearing and the documentation of the
conviction in the PSR, we find this argument meritless.
Ward next argues that the district court erred in
determining his Guidelines range because the court failed to
account for Amendment 611 in determining drug quantity, and that
the court erred in imposing a four-level enhancement of his offense
level based on his role in the offense. We conclude that, even if
error occurred, it was harmless, as Ward was sentenced to the
statutory mandatory minimum 240-month term of imprisonment. A
district court may depart below a statutory mandatory minimum term
of imprisonment only if the Government files a motion under 18
U.S.C. § 3553(e) (2000). Melendez v. United States, 518 U.S. 120,
128-30 (1996). There was no discussion of a departure in this
case, thus the district court had no authority to impose a sentence
below the statutory term, and any error in the offense level
calculations had no effect on Ward’s sentence.
Ward’s final argument is that counsel provided
ineffective assistance by failing to object to the leadership role
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enhancement, failing to require written notice under § 851 and
proof of the prior felony drug conviction before allowing Ward to
enter his plea, and failing to seek the district court’s resolution
of Ward’s objections to the PSR. Claims of ineffective assistance
of counsel are generally not cognizable on direct appeal. See
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Rather,
to allow for adequate development of the record, a defendant must
bring his claim in a 28 U.S.C. § 2255 (2000) motion. See id.;
United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An
exception exists when the record conclusively establishes
ineffective assistance. United States v. Richardson, 195 F.3d 192,
198 (4th Cir. 1999); King, 119 F.3d at 295. Our review of the
record does not conclusively show that counsel was ineffective. We
therefore decline to consider Ward’s allegations of ineffective
assistance of counsel, as he may raise them in a § 2255 motion.
Accordingly, we affirm Ward’s conviction and sentence.
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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