UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4029
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONNIE HAYZE WILKERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Sr.,
Senior District Judge. (1:06-cr-00172-WLO)
Submitted: May 15, 2009 Decided: June 12, 2009
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Clark Fischer, RANDOLPH & FISCHER, Winston-Salem, North
Carolina, for Appellant. Lisa Blue Boggs, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronnie Hayze Wilkerson appeals from his conviction and
158-month sentence entered pursuant to his guilty plea to
possession with intent to distribute crack cocaine. On appeal,
Wilkerson’s attorney has filed an Anders * brief, asserting that
there are no meritorious issues for appeal but raising the
claims that Wilkerson’s plea was involuntary, the Fed. R. Crim.
P. 11 hearing was deficient, the advisory Guidelines range was
incorrectly calculated, and counsel was ineffective. Wilkerson
has filed a pro se supplemental brief, expanding on counsel’s
arguments and adding new claims. After a thorough review of the
record, we affirm.
I.
Counsel raises the issue of defects in the Rule 11
hearing but concludes that the court was in “full compliance.”
In his pro se brief, Wilkerson asserts that the court failed to
inform him of his right to plead not guilty and of the
consequences for violating any term of supervised release that
might be imposed.
Because Rule 11 error was not raised in the district
court, we review for plain error. See United States v. Vonn,
*
Anders v. California, 386 U.S. 738 (1967).
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535 U.S. 55, 59 (2002). Thus, it is Wilkerson’s burden to show
(1) error; (2) that was plain; (3) that affected his substantial
rights; and (4) that this court should exercise its discretion
to notice. See United States v. Martinez, 277 F.3d 517, 529
(4th Cir. 2002). To show that his substantial rights were
affected, Wilkerson must demonstrate that, absent the error, he
would not have entered his guilty plea. Id. at 532.
Rule 11 requires that, before accepting a guilty plea,
the district court must inform the defendant of, and determine
that he understands, “the right to plead not guilty.” Fed. R.
Crim. P. 11(b)(1)(B). In addition, the court must inform the
defendant of the maximum possible term of supervised release.
Fed. R. Crim. P. 11(b)(1)(H). However, there is no requirement
that the court inform a defendant as to the possible
consequences for violating supervised release. A review of the
plea hearing transcript reveals that, although Wilkerson was not
informed of his right to plead not guilty, he was in fact
informed of the possibility of the imposition of a term of
supervised release and the consequences for violating supervised
release.
While Wilkerson was not informed of his continued
right to plead not guilty, it is clear that any error by the
district court in failing to inform Wilkerson about his right
was harmless and that Wilkerson has failed to show the error
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affected his substantial rights. The record indicates that
Wilkerson was informed about his right to plead not guilty in
his plea agreement, prior to his guilty plea hearing. Moreover,
at his Rule 11 hearing, he was told that, if he chose not to
plead guilty, he was entitled to a trial, and he was asked
specifically if he wanted to plead guilty. Thus, Wilkerson
cannot show that, absent the court’s error, he would not have
entered his guilty plea. Accordingly, there was no plain error.
II.
Counsel raises the issue of whether Wilkerson’s plea
was the result of force or coercion but concludes that it was
not. Wilkerson testified at his Rule 11 hearing that he had not
been threatened or made any undisclosed promises in exchange for
his plea. There is no other indication in the record that
Wilkerson was improperly induced to plead guilty. Accordingly,
we conclude that the plea was knowing and voluntary.
III.
Counsel next raises the question of whether the
Guidelines range was properly calculated but quickly concludes
that it was. In his pro se brief, Wilkerson claims that his
Guidelines range was incorrectly calculated based upon 5.5 grams
of crack cocaine rather than the 3.5 grams agreed upon in the
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plea agreement. Because Wilkerson does not dispute the facts in
the presentence report (“PSR”) resulting in a 5.5 gram total,
his argument is presumably based on the plea agreement--either
that the court was bound by the agreement or that the Government
breached the plea agreement by not arguing for a lower drug
amount.
However, the plea agreement’s stipulation concerned
the drugs involved in “the offense alleged in Count Two.” There
is nothing in the plea agreement preventing the Government from
advocating for or the court imposing a higher drug quantity
based on Wilkerson’s relevant conduct. The PSR properly
attributed Wilkerson with 3.5 grams for his actions on the count
of conviction in accordance with the plea agreement; the
remainder of the crack cocaine involved was from controlled buys
on other dates. Thus, the PSR’s calculation of drug quantity
was not at odds with the plea agreement, and we find no error in
the calculation of the drug quantity. See United States v.
DeWitt, 366 F.3d 667, 670 (8th Cir. 2004) (parties may reach a
stipulation with respect to the quantity attributable to a
particular transaction while leaving open the quantity
attributable based on other relevant conduct).
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IV.
Counsel raises the issue of whether trial counsel was
ineffective but concludes that nothing in the record suggests
any substandard performance. In his pro se brief, Wilkerson
asserts that his attorney should have had his family testify at
his sentencing hearing. Trial counsel introduced Wilkerson’s
family at the hearing and outlined their support of Wilkerson,
but none of Wilkerson’s relatives testified.
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. King, 119 F.3d
at 295. An exception exists where the record conclusively
establishes ineffective assistance. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
Here, the record does not support Wilkerson’s claim.
There is no evidence in the record as to what the potential
witnesses would have said. Moreover, counsel made the court
aware of Wilkerson’s supportive family and his good works in the
community, so it is unclear whether even the most glowing
testimony would have altered Wilkerson’s sentence. Because
there is no non-speculative evidence that counsel committed
errors that negatively affected Wilkerson’s sentence, we decline
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to consider Wilkerson’s allegations of ineffective assistance at
this time.
V.
In another issue raised in his pro se brief, Wilkerson
asserts that the sentencing court improperly relied upon its
conclusions that Wilkerson could not be rehabilitated and that a
substantial sentence was necessary in order to send a message to
the younger generation. However, 18 U.S.C. § 3553(a) (2006)
provides that the court “shall” consider whether a particular
sentence “afford[s] adequate deterrence to criminal conduct” and
“protect[s] the public from further crimes of the defendant.”
Thus, a determination that recidivism was likely and that
members of the younger generation would be deterred from future
crimes by a substantial sentence in this case are not only
valid, but necessary, considerations. See United States v.
Phinazee, 515 F.3d 511, 515-16 (6th Cir.) (noting that both
specific and general deterrence are proper sentencing
considerations), cert. denied, 129 S. Ct. 612 (2008).
In accordance with Anders, we have carefully reviewed
the entire record in this case and found no meritorious issues
for appeal. Accordingly, we affirm Wilkerson’s conviction and
sentence. We deny Wilkerson’s motion for appointment of
counsel. This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the
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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
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