United States v. Ward

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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