UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4496
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HASSAN SHABAZZ BERRY, a/k/a Dog,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:07-cr-00896-RBH-1)
Submitted: March 27, 2009 Decided: May 1, 2009
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James P. Rogers, Assistant Federal Public Defender, Aileen P.
Clare, Research and Writing Specialist, Columbia, South
Carolina, for Appellant. Alfred William Walker Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hassan Shabazz Berry appeals his conviction and
168-month sentence, imposed following his guilty plea to
possession with intent to distribute 500 grams or more of
cocaine, in violation of 21 U.S.C. § 841(a), (b)(1)(B) (2006).
On appeal, Berry’s counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), concluding that there are no
meritorious issues for appeal, but questioning whether the
district court erred in denying Berry’s motion to suppress
evidence, complied with Fed. R. Crim. P. 11 in accepting Berry’s
guilty plea, and imposed a reasonable sentence. Berry has also
filed a pro se supplemental brief. Finding no error, we affirm.
First, with respect to the district court’s denial of
Berry’s motion to suppress evidence, Berry’s voluntary plea of
guilty waived his right to challenge antecedent,
nonjurisdictional errors. See Tollett v. Henderson, 411 U.S.
258, 267 (1973). 1
Turning to Berry’s guilty plea, in the absence of a
motion to withdraw a guilty plea, we review the adequacy of the
plea proceeding for plain error. United States v. Martinez, 277
F.3d 517, 525 (4th Cir. 2002). A review of Berry’s guilty plea
1
Berry’s guilty plea did not reserve the right to appeal
the denial of the motion to suppress. See Fed. R. Crim. P.
11(a)(2).
2
hearing reveals that the district court fully complied with the
requirements of Rule 11. Berry’s plea was knowingly,
voluntarily, and intelligently made, with full knowledge of its
consequences. We therefore find that the district court did not
err in accepting Berry’s guilty plea.
Counsel also challenges the reasonableness of Berry’s
sentence. We review for abuse of discretion a district court’s
imposition of sentence. Gall v. United States, 128 S. Ct. 586,
597 (2007); see also United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007). We must first ensure that the district court
committed no procedural error, such as improperly calculating
the guideline range, considering the guidelines to be mandatory,
failing to consider the § 3553(a) factors, sentencing based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence. Gall, 128 S. Ct. at 597.
In the absence of procedural errors, we consider the
substantive reasonableness of the sentence, taking into account
the totality of the circumstances, including any variance from
the guideline range. Pauley, 511 F.3d at 473. While we may
presume a sentence within the guideline range to be reasonable,
we may not presume a sentence outside the range to be
unreasonable. Id. Moreover, we give deference to the district
court’s decision that the § 3553(a) factors justify a variant
sentence and to the extent of that variance. Even if the
3
reviewing court would have imposed a different sentence, this
fact alone is not sufficient to justify reversing the district
court. Id. at 473-74.
In imposing Berry’s sentence, the district court
correctly calculated the guideline range and considered both the
advisory nature of the guidelines and the § 3553(a) factors.
The court provided appropriate reasoning for its decision to
impose a variant sentence twenty months below the lowest
sentence in the guideline range. Accordingly, we conclude that
Berry’s sentence is both procedurally and substantively
reasonable.
In his pro se supplemental brief, Berry reiterates
some of the issues presented by counsel. He also contends that
the Government breached the plea agreement by failing to file a
motion for substantial assistance, challenges his career
offender status, and alleges that his trial counsel rendered
ineffective assistance. Our review of the record leads us to
conclude that these claims lack merit. 2
2
With respect to Berry’s ineffective assistance of counsel
claim, where, as here, the record does not conclusively
demonstrate ineffective assistance, such claims should be raised
in a 28 U.S.C.A. § 2255 (West Supp. 2008) motion rather than on
direct appeal. See United States v. King, 119 F.3d 290, 295
(4th Cir. 1997).
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Berry’s conviction and sentence.
This court requires that 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, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client. 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
5