UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4170
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN EDWARD PATTERSON, a/k/a Pat Patterson,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:06-cr-00251-LHT-5)
Submitted: February 20, 2009 Decided: April 8, 2009
Before TRAXLER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas A. Will, Jr., THE LAW OFFICE OF THOMAS A. WILL, JR.,
Gastonia, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Edward Patterson, a/k/a Pat Patterson, appeals
his conviction and sentence for conspiracy to distribute cocaine
base, in violation of 21 U.S.C. § 846 (2006). Patterson pled
guilty pursuant to a written plea agreement that stipulated,
pursuant to Fed. R. Crim. P. 11(c)(1)(B), that the Career
Offender provision set out in U.S. Sentencing Guidelines Manual
(“USSG”) § 4B1.1 “may be used” in determining his sentence if it
was determined to be applicable. Patterson’s attorney has filed
a brief pursuant to Anders v. California, 386 U.S. 739 (1967).
Although concluding that there are no meritorious issues for
appeal, counsel questions whether Patterson’s guilty plea was
valid and whether he received ineffective assistance of counsel.
Patterson has not filed a pro se supplemental brief and the
Government declined to file a brief. After a careful review of
the record, we affirm.
I.
Under Rule 11(b)(1), the district court must address
the defendant in open court and inform him of the following: the
nature of the charge; any mandatory minimum sentence and the
maximum possible sentence; the applicability of the Sentencing
Guidelines; the court’s obligation to impose a special
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assessment; the defendant’s right to an attorney; his right to
plead not guilty and be tried by a jury with the assistance of
counsel; his right to confront and cross-examine witnesses; his
right against self-incrimination; and his right to testify,
present evidence, and compel the attendance of witnesses. The
defendant also must be told that a guilty plea waives any
further trial and that his answers at the proceeding may be used
against him in a prosecution for perjury. Under Rule 11(b)(2),
the court must address the defendant to determine that the plea
is voluntary. The court must require disclosure of any plea
agreement under Rule 11(c)(2) and determine a factual basis for
the plea under Rule 11(b)(3).
At the Rule 11 hearing, the district court informed
Patterson of the nature of the charges against him, the possible
application of the guidelines to his sentence, and the fact that
he would not be allowed to withdraw his guilty plea if he
received a higher sentence than he expected. When Patterson
questioned the guidelines range determined at the sentencing
hearing, and the court questioned whether he understood that he
could have chosen to go to trial, Patterson indicated that he
would not have wanted to go to trial, and did not seek to
withdraw his guilty plea. The record reflects that his guilty
plea was knowing and voluntary.
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II.
We may address on direct appeal a claim that counsel
was ineffective only if the ineffectiveness appears conclusively
on the face of the record. United States v. Baldovinos, 434
F.3d 233, 239 (4th Cir. 2006). In this case, there is no
conclusive indication from the record that Patterson’s counsel
did not properly advise him regarding his plea agreement,
despite Patterson’s contention that his counsel estimated his
guidelines range would be lower than it was determined to be,
perhaps based upon a mistaken prediction that Patterson would
not be sentenced as a career offender. The plea agreement
specifically noted that Patterson might be sentenced as a career
offender, and the record does not conclusively indicate that
Patterson’s counsel failed to effectively advise him regarding
that provision.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Patterson, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Patterson 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
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representation. Counsel’s motion must state that a copy thereof
was served on Patterson.
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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