UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4273
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH LOUIS REID,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:03-cr-00225-FDW-DCK-1)
Submitted: June 23, 2010 Decided: July 6, 2010
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Chiege O. Kalu Okwara, Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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:
Kenneth Louis Reid timely appeals the 240-month
sentence imposed following his guilty plea to one count of
possession with intent to distribute fifty grams or more of
cocaine base, in violation of 21 U.S.C. § 841 (2006). Reid’s
counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), asserting that there are no meritorious grounds for
appeal, but questioning whether the district court: (1) found a
sufficient factual basis to accept Reid’s guilty plea; (2)
failed to ensure Reid’s guilty plea was knowing and voluntary;
and (3) erred in sentencing Reid to the statutory mandatory
minimum sentence. Reid filed a pro se supplemental brief,
claiming that his guilty plea was induced and involuntary. Reid
later filed an amended pro se supplemental brief alleging
ineffective assistance of counsel. Finding no reversible error,
we affirm.
Because Reid did not move to withdraw his guilty plea
or raise any objections to the Federal Rule of Criminal
Procedure 11 (“Rule 11”) colloquy in the district court, we
review for plain error. United States v. Martinez, 277 F.3d
517, 524-27 (4th Cir. 2002); United States v. General, 278 F.3d
389, 393 (4th Cir. 2002). To demonstrate plain error, a
defendant must show that: (1) there was an error; (2) the error
was plain; and (3) the error affected his “substantial rights.”
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United States v. Olano, 507 U.S. 725, 732 (1993). A defendant’s
substantial rights are affected if we determine that the error
“influenced the defendant’s decision to plead guilty and
impaired his ability to evaluate with eyes open the direct
attendant risks of accepting criminal responsibility.” United
States v. Goins, 51 F.3d 400, 402-03 (4th Cir. 1995) (internal
quotation marks omitted); see also Martinez, 277 F.3d at 532
(holding that a defendant must demonstrate that he would not
have pled guilty but for the error).
Counsel first argues that the district court failed to
ensure a factual basis for the plea. Prior to accepting a
guilty plea, the district court “need only be subjectively
satisfied that there is a sufficient factual basis for a
conclusion that the defendant committed all of the elements of
the offense.” United States v. Mitchell, 104 F.3d 649, 652 (4th
Cir. 1997). At the sentencing hearing, the parties stipulated
to the facts in the Presentence Investigation Report (“PSR”) as
forming a sufficient factual basis for the plea. Upon review,
we find that the district court did not err in accepting the
facts as set out in the PSR.
Counsel next questions whether Reid’s guilty plea was
knowing and voluntary and whether Reid was competent to enter a
guilty plea. Reid argues the same points in his pro se
supplemental brief, claiming that counsel coerced him into
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pleading guilty, that he did not understand the nature of the
charge and consequences of his plea, and that he has diminished
mental capacity. However, there is no indication in the record
that Reid has diminished mental capacity beyond Reid’s bald
assertions. Additionally, Reid’s sworn statements during the
plea colloquy belie his remaining assertions. See Blackledge v.
Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open
court carry a strong presumption of verity.”). Therefore, we
find Reid’s arguments without merit. Our review of the plea
colloquy reveals that the magistrate judge otherwise
substantially complied with the requirements of Rule 11 in
ensuring Reid’s guilty plea was knowing and voluntary.
Counsel next questions whether the district court
should have departed below the statutory mandatory minimum 240-
month sentence based on substantial assistance. Pursuant to 18
U.S.C. § 3553(e) (2006) and USSG § 5K1.1, the district court may
only impose a sentence below the statutory mandatory minimum
based on substantial assistance if the government makes a motion
permitting the district court to do so. The Government did not
do so; thus, the court had no authority to depart below that
sentence. See 18 U.S.C. § 3553(e); Melendez v. United States,
518 U.S. 120, 125-26 (1996).
In his amended pro se supplemental brief, Reid also
claims that counsel was ineffective for failing to bring his
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mental and emotional problems to the district court’s attention,
resulting in the denial of a competency hearing. A defendant
may raise a claim of ineffective assistance of counsel “on
direct appeal if and only if it conclusively appears from the
record that his counsel did not provide effective assistance.”
United States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998).
To prove ineffective assistance the defendant must show two
things: (1) “that counsel’s representation fell below an
objective standard of reasonableness” and (2) “that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). In the
context of a guilty plea, “the defendant must show that there is
a reasonable 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). Our
review of the record reveals no conclusive evidence that Reid’s
counsel did not adequately represent him. Accordingly, we
decline to consider on direct appeal Reid’s assertion that his
attorney failed to render effective assistance.
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 Reid, in writing, of his right to
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petition the Supreme Court of the United States for further
review. If Reid requests that a petition be filed, but counsel
believes that such a petition would be frivolous, counsel may
move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Reid. We dispense with oral argument because the facts and
legal conclusions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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