UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4876
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ASHLEY TERRELL BROOKS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J.
Conrad, Jr., Chief District Judge. (3:06-cr-00115-RJC)
Submitted: September 30, 2008 Decided: October 14, 2008
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ronald Cohen, Wilmington, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Adam Morris,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ashley Terrell Brooks pled guilty without a plea
agreement to possession of a firearm by a convicted felon. The
district court sentenced Brooks to 180 months in prison. Brooks
timely appealed.
Brooks first contends that his guilty plea was not
knowing and voluntary because, at his plea hearing, both the
Government and defense counsel misinformed him regarding his
status as an armed career criminal. In order to enter a knowing
and voluntary guilty plea, a defendant must know the direct
consequences of his guilty plea. Brady v. United States, 397
U.S. 742, 755 (1970); Cuthrell v. Dir., Patuxent Inst., 475 F.2d
1364, 1365 (4th Cir. 1973). “Direct consequences” are defined
“as those having a ‘definite, immediate and largely automatic
effect on the range of the defendant’s punishment.’” Bryant v.
Cherry, 687 F.2d 48, 50 (4th Cir. 1982) (quoting Cuthrell, 475
F.2d at 1366). Under Fed. R. Crim. P. 11(b)(1)(I), a defendant
must be informed of any mandatory minimum penalty for his
offense.
Although the Government and defense counsel expressed
belief at the Fed. R. Crim. P. 11 hearing that Brooks was not an
armed career criminal, both defense counsel and the magistrate
judge noted that it was a possibility and the magistrate judge
took great pains to ensure that Brooks understood that he might
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qualify as an armed career offender and, if he did, he faced a
mandatory minimum sentence of fifteen years in prison. Brooks
stated at the plea hearing that he understood the situation and
he is now bound by his statement. See Beck v. Angelone, 261
F.3d 377, 395-96 (4th Cir. 2001) (absent “clear and convincing
evidence” to the contrary, defendant is bound by statements made
under oath at Rule 11 hearing). We therefore find that Brooks’
guilty plea was knowing and voluntary.
Brooks also argues that counsel was ineffective for
failing to advise him that he qualified as an armed career
criminal and therefore faced an enhanced penalty. Claims of
ineffective assistance of counsel generally are not cognizable
on direct appeal. 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 claims in a 28 U.S.C.A.
§ 2255 (West Supp. 2008) motion. Id.; United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
To prevail on a claim of ineffective assistance of
counsel, a defendant must demonstrate both that his attorney’s
performance fell below an objective standard of reasonableness
and that counsel’s deficient performance was prejudicial.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy
the prejudice prong of the Strickland test in the context of a
guilty plea, a defendant “must show that there is a reasonable
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probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill
v. Lockhart, 474 U.S. 52, 59 (1985).
Here, the record does not conclusively show that
Brooks was denied effective assistance of counsel. Assuming
arguendo that counsel was or should have been aware at the time
of Brooks’ guilty plea that Brooks qualified for the armed
career criminal designation and should have so advised his
client, Brooks was not prejudiced by the alleged error. The
magistrate judge warned Brooks at the plea hearing that he might
be subject to the armed career criminal enhancement and, even
with this knowledge, Brooks elected to plead guilty. Because it
does not appear conclusively from the record that counsel was
ineffective, Brooks’ claim is not cognizable on direct appeal.
Brooks also asserts that the district court failed to
adequately state the reasons for the sentence imposed or to
sufficiently consider mitigating circumstances. We find this
claim to be meritless.
This court reviews the sentence imposed by the
district court for abuse of discretion. Gall v. United States,
128 S. Ct. 586, 597 (2007); United States v. Pauley, 511 F.3d
468, 473 (4th Cir. 2007). The appellate court must first ensure
that the district court committed no “significant” procedural
errors, such as “failing to calculate (or improperly
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calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence — including an
explanation for any deviation from the Guidelines range.” Gall,
128 S. Ct. at 597.
If the appellate court concludes that the sentence is
“procedurally sound,” the court then considers the substantive
reasonableness of the sentence. Id. “Substantive
reasonableness review entails taking into account the ‘totality
of the circumstances, including the extent of any variance from
the Guidelines range.’” Pauley, 511 F.3d at 473 (quoting Gall,
128 S. Ct. at 597).
In this case, the district court correctly calculated
the guideline range, treated the guidelines as advisory, and
considered the § 3553(a) factors before imposing a sentence at
the bottom of the guideline range and at the statutory mandatory
minimum. Because the sentence was within the guideline range,
we afford it a presumption of reasonableness which Brooks has
failed to rebut. United States v. Go, 517 F.3d 216, 218 (4th
Cir. 2008); see Rita v. United States, 127 S. Ct. 2456, 2462-69
(2007) (upholding presumption of reasonableness for within-
guidelines sentence). Therefore, we are satisfied that the
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sentence was reasonable and the district court did not abuse its
discretion in imposing it. 1
For these reasons, we affirm Brooks’ conviction and
sentence. 2 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
1
Brooks also cursorily asserts that his sentence enhancement
under the Armed Career Criminal Act, 18 U.S.C.A. § 924(e)(1)
(West 2000 & Supp. 2008), violates the Sixth Amendment because
his prior convictions were not submitted to a jury, proved
beyond a reasonable doubt, or admitted by him. We have
previously rejected this argument. United States v. Cheek, 415
F.3d 349, 352-54 (4th Cir. 2005); see also United States v.
Thompson, 421 F.3d 278, 283 (4th Cir. 2005).
2
We grants Brooks’ motion to file a pro se supplemental
brief and find the claims therein to be without merit.
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