UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4637
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMARCUS ANTONIO THOMAS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:11-cr-00369-WO-3)
Submitted: June 27, 2013 Decided: July 11, 2013
Before WILKINSON and KEENAN, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE,
Raleigh, North Carolina, for Appellant. Ripley Rand, United
States Attorney, Randall S. Galyon, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demarcus Antonio Thomas pled guilty to conspiracy to
distribute 28 or more grams of cocaine base (crack) in violation
of 21 U.S.C. § 846 (2006), and was sentenced to 108 months’
imprisonment. Thomas appeals his sentence, challenging the
quantity of crack attributed to him under U.S. Sentencing
Guidelines Manual § 2D1.1 (2011); an enhancement for possession
of a firearm during the offense, see USSG § 2D1.1(b)(1); the
district court’s failure to award him a reduction under the
safety valve provision, see USSG § 5C1.2; and the court’s
refusal to vary below the Guidelines range. He also asserts
that he received ineffective assistance of counsel. We affirm.
Thomas and numerous co-defendants sold crack in an
area of North Durham, North Carolina, between 2008 and late
2011. Durham police had the area under surveillance, which
included a pole camera installed in August 2010, and they
conducted controlled purchases of crack using confidential
informants who carried audio and video recording equipment. In
written objections to the presentence report, Thomas objected to
the quantity of crack attributed to him and to the firearm
enhancement. He also requested a downward variance, pursuant to
18 U.S.C.A. § 3553(a)(2) (West 2000 & Supp. 2013), to a range of
60-71 months. However, at the sentencing hearing, Thomas
stipulated that he was responsible, for sentencing purposes, for
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280-840 grams of crack, resulting in a base offense level of
thirty-two. He also withdrew his objection to the two-level
enhancement for possession of a firearm during the offense, and
stated that he had no other objections to the presentence
report. The district court accepted the stipulation and adopted
the presentence report with the resulting changes in the
Guidelines calculation. Thomas’ new total offense level was 31,
and his Guidelines range was 108-135 months.
Thomas’ attorney asked for a downward variance to a
sentence of eighty-four months based on Thomas’ youth (he was
twenty-one years old), his positive involvement with his family,
and his potential for a law-abiding and productive future life.
The district court declined to vary downward, explaining it had
considered the Guidelines range and the § 3353(a) factors and
concluded that, although Thomas was not a leader in the
conspiracy, the offense was serious because such long-term,
organized, open air drug sales negatively affected an entire
community. The court noted that Thomas had the support of his
family, but made bad choices. The court enumerated the
§ 3553(a) factors and concluded that, in light of all of them, a
sentence within the Guidelines range was sufficient, but not
greater than necessary. The court imposed a sentence at the
bottom of the Guidelines range.
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Sentences are reviewed for procedural and substantive
reasonableness under an abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). Thomas’ allegations of
error with respect to the drug amount and firearm enhancement
assert a miscalculation of the Guidelines range, which is a
significant procedural error. Id. However, when Thomas raised
and subsequently withdrew objections to the drug quantity and
the firearm enhancement in the district court, he waived
appellate review of those issues. See United States v.
Horsfall, 552 F.3d 1275, 1283 (11th Cir. 2008) (finding that
defendant's withdrawal of objection to sentence enhancement
precluded appellate review of enhancement); United States v.
Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) (“[A] party who
identifies an issue, and then explicitly withdraws it, has
waived the issue.”). An appellant is precluded from challenging
a waived issue on appeal. See Rodriguez, 311 F.3d at 437. Such
a waiver is distinguishable “from a situation in which a party
fails to make a timely assertion of a right - what courts
typically call a ‘forfeiture,’” id. (quoting United States v.
Olano, 507 U.S. 725, 733 (1993)), which may be reviewed on
appeal for plain error. Thomas objected to the amount of crack
attributed to him in the presentence report and to the firearm
enhancement, but withdrew both objections at the sentencing
hearing. He has therefore waived review of both issues.
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In his reply brief, Thomas argues that, regardless of
his withdrawal of his objections to the presentence report, the
district court erred in making the firearm enhancement because
there was no evidence that he had personally possessed a weapon
during or in connection with his drug sales. However, the
enhancement applies “if the weapon was present, unless it is
clearly improbable that the weapon was connected with the
offense.” USSG § 2D1.1 cmt. n.3(A).
The presentence report contained information from one
of Thomas’s co-defendants that Thomas had joined other
conspirators in pooling money to buy firearms. These weapons
were hidden in the Canal Street area, where they were available
to Thomas and the other dealers if needed. One of the dealers
with whom Thomas sold crack was seen on the surveillance camera
handling a firearm and hiding it in a trash can where police
officers later found it. Although Thomas was not seen carrying
a firearm, the firearm was present, and the conduct of his co-
conspirators in furtherance of the conspiracy was properly
attributed to him as relevant conduct under USSG
§ 1B1.3(a)(1)(B). Because Thomas did not make an affirmative
showing that the information in the presentence report was
inaccurate, the district court was free to accept it “without
more specific inquiry or explanation.” United States v. Terry,
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916 F.2d 157, 162 (4th Cir. 1990) (internal quotation marks and
citation omitted).
Thomas contends that his within-Guidelines sentence
was unreasonably long because the district court failed to
“reasonably consider” the § 3553(a) factors which, in his view,
supported a below-Guidelines sentence. He also claims that the
district court failed to explain adequately its reasons for not
varying below the Guidelines range. However, the district court
properly calculated Thomas’s sentencing range, considered and
discussed the relevant § 3553(a) factors, and imposed a sentence
within the applicable sentencing range. This court treats a
sentence within a properly calculated Guidelines range as
presumptively reasonable. United States v. Mendoza-Mendoza, 597
F.3d 212, 216 (4th Cir. 2010). Thomas has not overcome the
presumption of reasonableness accorded his within-Guidelines
sentence. See Rita v. United States, 551 U.S. 338, 347 (2007).
Next, Thomas argues that the district court erred by
not sua sponte awarding him a two-level reduction in offense
level under § 5C1.2, which is applicable if the defendant meets
the five criteria set out in 18 U.S.C. § 3553(f) (2006). One
requirement is that the defendant not have possessed a firearm
in connection with the offense. The defendant has the burden of
showing that he has met the prerequisites. United States v.
Aidoo, 670 F.3d 600, 605 (4th Cir.), cert. denied, 133 S. Ct.
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627 (2012). Because Thomas did not request application of the
safety valve reduction in the district court, his claim of error
in this appeal is reviewed for plain error. United States v.
Olano, 507 U.S. 725, 731 (1993). By withdrawing his objection
to the firearm enhancement under § 2D1.1, Thomas effectively
conceded that he had possessed a firearm with his co-defendants
in furtherance of their mutual drug trafficking. Therefore, the
district court did not plainly err in failing, sua sponte, to
award Thomas a safety valve reduction.
Last, Thomas alleges that his attorney rendered
ineffective assistance at sentencing by withdrawing his
objection to the firearm enhancement under § 2D1.1(b)(1) and
thus precluding him from qualifying for a safety valve reduction
under § 5C1.2. Ineffective assistance claims are not generally
addressed on direct appeal unless an attorney’s ineffectiveness
is conclusively apparent on the face of the record. United
States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
Counsel’s ineffectiveness is not conclusively apparent on the
face of this record; therefore, this claim is more properly
raised on a motion to vacate under 28 U.S.C.A. § 2255 (West
Supp. 2013).
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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