UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4866
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ELWOOD AVERY,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:08-cr-00128-MR-DLH-2)
Submitted: August 11, 2010 Decided: September 9, 2010
Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Dennis M. Hart, Washington, D.C., 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Unpublished opinions are not binding precedent in this circuit.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:
Elwood Avery appeals the 188-month sentence imposed
following his guilty plea, pursuant to a written plea agreement,
to one count of conspiracy to distribute fifty grams or more of
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846
(2006). Avery’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: (1) the
district court failed to ensure Avery’s guilty plea was knowing
and voluntary, (2) the district court properly sentenced Avery
as a career offender, (3) the district court erred in failing to
take into account the powder-to-crack cocaine disparity when
sentencing Avery, and (4) Avery conclusively showed that he
received ineffective assistance of counsel. Avery filed a pro
se supplemental brief also raising the issue of whether the
district court properly sentenced him as a career offender. We
affirm the conviction, vacate the sentence, and remand for
resentencing.
Counsel first questions whether Avery’s guilty plea
was knowing and voluntary. Prior to accepting a defendant’s
guilty plea, Federal Rule of Criminal Procedure 11 requires the
district court to address the defendant in open court and ensure
he understands, among other things, the nature of the charge
against him, the possible punishments he faces, and the rights
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he relinquishes by pleading guilty. Fed. R. Crim. P. 11(b)(1).
Additionally, the district court must “determine that there is a
factual basis for the plea.” Fed. R. Crim. P. 11(b)(3).
Because Avery did not move to withdraw his guilty plea
in the district court or raise any objections to the Rule 11
colloquy, the colloquy is reviewed 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.” 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 suggests that the district court’s acceptance
of the parties’ stipulation of the factual basis for the plea
could be problematic. Prior to accepting a guilty plea, the
district court “need only be subjectively satisfied that there
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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 conclude that the
district court did not err in accepting the facts as set out in
the PSR. We have also reviewed the plea colloquy and find that
the district court fully complied with the mandates of Rule 11.
Therefore, we find that Avery’s guilty plea was knowing and
voluntary.
Next, both counsel and Avery challenge Avery’s career
offender designation. Because Avery failed to challenge his
career offender designation in the district court, we review for
plain error. United States v. Branch, 537 F.3d 328, 343 (4th
Cir. 2008), cert. denied, 129 S. Ct. 943 (2009). To qualify as
a career offender: (1) the defendant must have been at least
eighteen years old at the time of the offense of conviction;
(2) the offense of conviction must have been a felony crime of
violence or controlled substance offense; (3) and the defendant
must have at least two prior felony convictions for crimes of
violence or controlled substance offenses. USSG § 4B1.1(a). A
prior felony conviction includes a crime of violence or
controlled substance offense that is punishable by more than one
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year imprisonment, “regardless of whether such offense is
specifically designated as a felony and regardless of the actual
sentence imposed.” USSG § 4B1.2(a), (b), cmt. n.1.
Neither counsel nor Avery disputes that Avery’s 1993
conviction for felony robbery with a dangerous weapon
constitutes a predicate offense. However, counsel questions
whether Avery’s prior drug conviction is a predicate offense
because the offense is not currently punishable by imprisonment
for more than one year. In 1995, Avery pled guilty to “Felony
Sell/Deliver Cocaine” after selling 0.11 grams of crack cocaine
to an undercover officer, and was sentenced to three years’
imprisonment. Thus, based on the sentence Avery received, it is
clear the offense was punishable by a term of imprisonment
exceeding one year as of the date of Avery’s sentencing.
Counsel maintains that under the current statutory
scheme, Avery’s exposure could be less than one year
imprisonment. However, we have held that whether a prior
conviction was punishable by a term of imprisonment exceeding
one year is governed by the law in effect on the date of
conviction. United States v. Carter, 300 F.3d 415, 427 (4th
Cir. 2002); United States v. Johnson, 114 F.3d 435, 445 (4th
Cir. 1997). Accordingly, Avery’s 1995 drug conviction qualifies
as a predicate offense for career offender status.
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Avery also argues in his pro se supplemental brief
that his prior conviction was not a felony because he possessed
less than twenty-eight grams of cocaine base. Avery
misinterprets the applicable statute. Pursuant to North
Carolina General Statutes § 90-95(h)(3), one convicted of
possession of twenty-eight grams or more of cocaine is guilty of
the felony of trafficking in cocaine. However, Avery was
convicted of selling cocaine base, not trafficking in cocaine
base. North Carolina General Statutes § 90-95(a)(1), (b)(1)
makes selling cocaine base a felony without regard to the
quantity of drugs sold. Thus, his argument fails.
Counsel and Avery also argue that the drug conviction
is not a predicate offense because it was obtained in violation
of the Double Jeopardy Clause. Avery contends that, because
North Carolina assessed a drug tax against him after his arrest
and a portion of the drug tax was satisfied with money seized
upon his arrest, his subsequent conviction violated the Double
Jeopardy Clause.
In Lynn v. West, 134 F.3d 582, 588-93 (4th Cir. 1998),
we held that the North Carolina “drug tax” is a criminal penalty
for purposes of the Double Jeopardy Clause. Thus, the drug
offense for which the drug tax was paid cannot be counted as a
predicate offense toward a career offender designation. United
States v. Brandon, 363 F.3d 341, 345-46 (4th Cir. 2004).
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However, Avery fails to prove that he was assessed and in fact
paid the drug tax prior to his conviction. Therefore, we
conclude the district court did not err on this basis in
counting the 1995 drug offense as a predicate offense for
purposes of the career offender designation.
Counsel also questions whether the district court
erred in failing to consider the sentencing disparity between
crack and powder cocaine when imposing sentence. Because Avery
failed to raise this argument in the district court, we review
for plain error. Branch, 537 F.3d at 343.
The district court does not err if, when sentencing a
defendant, it concludes “that the crack/powder disparity yields
a sentence ‘greater than necessary’ to achieve [18 U.S.C.]
§ 3553(a)’s [(2006)] purposes.” Kimbrough v. United States, 552
U.S. 85, 110 (2007). Rather, under the advisory Guidelines,
“district courts are entitled to reject and vary categorically
from the crack-cocaine Guidelines based on a policy disagreement
with those Guidelines.” Spears v. United States, __ U.S. __,
129 S. Ct. 840, 843-44 (2009). The district court is not
required to apply a one-to-one ratio; Spears merely permits a
district court to substitute its own ratio if it determines the
sentencing disparity is unwarranted.
Here, the district court did not determine that the
sentencing disparity was unwarranted; in fact, it explicitly
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stated that the sentence imposed was “not greater than necessary
to comply with the purposes set forth in 18 U.S.C. § 3553(a).”
Thus, we find that the district court did not err in failing to
sentence Avery based on a one-to-one ratio.
Counsel next questions whether Avery received
ineffective assistance of counsel. A defendant may raise a
claim of ineffective assistance “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 satisfy two requirements: (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 Avery’s counsel did
not adequately represent him. Therefore, we decline to consider
Avery’s ineffective assistance claims on direct appeal.
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While none of the claims raised by counsel or Avery
warrant relief, our required review of the record pursuant to
Anders discloses that the district court failed to permit Avery
the opportunity to allocute at the sentencing hearing. This
omission was erroneous. Fed. R. Crim. P. 32(i)(4)(A)(ii)
provides that “[b]efore imposing sentence, the [district] court
must . . . address the defendant personally in order to permit
the defendant to speak or present any information to mitigate
the sentence.” Here, the district court, after taking care of
all the issues raised and prior to imposing sentence, addressed
counsel stating: “All right, sir. Then if there’s nothing
further, I’ll proceed to sentence in [the calculated] range.”
Counsel indicated that there was nothing further; however, the
district judge failed to address Avery directly before
announcing his sentence. Because Avery did not object to this
omission in the district court, we review for plain error.
United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007).
Applying this heightened standard, we nevertheless conclude that
the district court plainly erred in failing to permit Avery the
opportunity to allocute.
Our finding of plain error does not, however, end the
inquiry; we must next assess whether such error affected Avery’s
substantial rights. Olano, 507 U.S. at 732. Even if so, we are
not required to correct a plain error unless “a miscarriage of
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justice would otherwise result,” meaning that “the error
seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Id.
“[A] defendant [is] not prejudiced by the denial of
allocution when there was no possibility that he could have
received a shorter sentence.” Muhammad, 478 F.3d at 249.
However, we have held that:
When a defendant was unable to address the court
before being sentenced and the possibility remains
that an exercise of the right of allocution could have
led to a sentence less than that received, we are of
the firm opinion that fairness and integrity of the
court proceedings would be brought into serious
disrepute were we to allow the sentence to stand.
United States v. Cole 27 F.3d 996, 999 (4th Cir. 1994).
We conclude that, in this case, the district court’s
plain error affected Avery’s substantial rights. Had the
district court permitted Avery the opportunity to allocute,
Avery may have raised an argument regarding the sentencing
disparity between crack cocaine and powder cocaine and persuaded
the district court to find that the disparity was unwarranted.
Or he might have articulated other factors that would have
persuaded the district court that further leniency was
appropriate. Thus, because there is a possibility Avery may
have received a lower sentence had he been afforded the
opportunity to personally address the district court prior to
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imposition of his sentence, we are constrained to vacate Avery’s
sentence and remand for resentencing. *
In accordance with Anders, we have examined the entire
record and find no other meritorious issues for appeal. We
therefore affirm Avery’s conviction, but vacate his sentence and
remand for resentencing. Counsel’s motion to withdraw is
denied. 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 IN PART,
VACATED IN PART,
AND REMANDED
*
By this disposition, we express no opinion whether a lower
sentence is appropriate, leaving that determination to the
discretion of the district court.
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