UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4546
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEITH JERMAINE LANCE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:07-cr-01116-DCN-1)
Submitted: September 18, 2008 Decided: October 14, 2008
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Mary Gordon Baker, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Peter Thomas Phillips, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In accordance with a plea agreement, Keith Jermaine
Lance, Jr., pled guilty to possession with intent to distribute
fifty grams or more of crack cocaine, 21 U.S.C. § 841(a)(1) (2000),
and using and carrying a firearm in connection with a drug
trafficking crime, 18 U.S.C. § 924(c)(1)(A)(I) (2000). Lance was
sentenced to 120 months in prison for the drug offense and received
a consecutive sixty-month sentence for the firearm offense. He now
appeals. His attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), raising two issues but stating
that there are no meritorious issues for appeal. Lance raises
additional issues in his pro se supplemental brief. We affirm.
In the Anders brief, counsel first questions whether the
district court complied with Fed. R. Crim. P. 11 but concludes that
it did. Our review of the transcript of Lance’s arraignment
discloses full compliance with the Rule. Further, the transcript
reveals that Lance entered his guilty plea intelligently,
voluntarily and knowingly, with a full understanding of the
consequences of his plea.
In his pro se brief, Lance suggests that his convictions
are invalid because he was not served with search warrants and was
not provided the audio recordings of two of his drug transactions.
These claims are not cognizable because Lance’s valid guilty plea
waives any prior, nonjurisdictional defects. See Tollett v.
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Henderson, 411 U.S. 258, 267 (1973); United States v. Bundy, 392
F.3d 641, 644-45 (4th Cir. 2004).
We turn next to Lance’s sentence. For the drug offense,
Lance’s Guidelines range as initially calculated was 70-87 months.
However, because Lance was statutorily subject to a minimum of ten
years in prison for this offense, see 21 U.S.C.A. § 841(b)(1)(A)
(West 1999 & Supp. 2008), his Guidelines range became 120 months.
See U.S. Sentencing Guidelines Manual § 5G1.1(b)(1)(A)(iii) (2000).
The district court sentenced Lance to 120 months for this crime.
The court also imposed the statutorily mandated consecutive five-
year sentence for the firearm offense. See 18 U.S.C.
§ 924(c)(1)(A)(I).
Counsel contends that the statutory minimum sentences set
forth in § 841(b) violate the Equal Protection Clause. As counsel
acknowledges, however, we have previously rejected similar
constitutional challenges to the statute. See United States v.
Fisher, 58 F.3d 96, 99-100 (4th Cir. 1995); United States v.
D’Anjou, 16 F.3d 604, 613-14 (4th Cir. 1994).
Counsel also argues that the statutory minimum sentences set
forth in § 841(b) should not survive judicial scrutiny in light of
recent amendments to the sentencing guidelines, which lowered the
offense levels for drug offenses involving crack cocaine. See U.S.
Sentencing Guidelines Manual § 2D1.1(c) (2007 & Supp. 2008); USSG
App. C Amend. 706, 711. The Supreme Court recently observed that,
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after the amendments, “sentencing courts remain bound by the
mandatory minimum sentences prescribed [by statute].” Kimbrough v.
United States, 128 S. Ct. 558, 573 (2007). Accordingly, this claim
is without merit.
We review a criminal sentence for reasonableness,
applying the abuse of discretion standard. Gall v. United States,
128 S. Ct. 586, 594-97 (2007); see also United States v. Go, 517
F.3d 216, 218 (4th Cir. 2008). The appellate court must first
determine whether the district court committed any “significant
procedural error.” Gall, 128 S. Ct. at 597. The court then
considers the substantive reasonableness of the sentence, and may
apply a presumption of reasonableness to a sentence within the
Guidelines range. Go, 517 F.3d at 218; see also Gall, 128 S. Ct.
at 597; Rita v. United States, 127 S. Ct. 2456 (2007) (approving
presumption of reasonableness).
Here, with respect to the drug offense, the district court
correctly calculated Lance’s advisory Guidelines range of 120
months, considered that range in conjunction with the factors set
forth at 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008),* and
sufficiently explained its reason for imposing sentence. See
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
*
In sentencing Lance, the district court considered the
presentence report, which addressed matters such as Lance’s
background and criminal history, and heard from Lance, his
attorney, and family members.
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Lance’s sentence of 120 months is presumptively reasonable under Go
and Gall. His consecutive five-year sentence for the firearm
offense was statutorily mandated. We recently observed that “[a]
statutorily required sentence . . . is per se reasonable.” United
States v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008). We conclude
that Lance’s sentence is reasonable.
Lance claims in his pro se supplemental brief that his
attorney was ineffective. To allow for adequate development of the
record, a claim of ineffective assistance of counsel ordinarily
must be raised in a 28 U.S.C. § 2255 (2000) motion unless
ineffectiveness conclusively appears on the face of the record.
United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).
Here, the record does not establish ineffective representation.
We have examined the entire record in this case in
accordance with the requirements of Anders, and we find no
meritorious issues for appeal. Accordingly, we affirm. 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, counsel may move
in this court for leave to withdraw from representation. Counsel’s
motion must state that a copy of the motion was served on the
client. We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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