UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4703
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
and
ROY NELSON PATTON, SR.; JOHN WILSON PATTON; BARBARA ANN
PATTON LEONARD,
Claimants,
v.
GLENDA ALBRIGHT ADAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:08-cr-00128-LHT-1)
Submitted: September 15, 2010 Decided: September 24, 2010
Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dennis Gibson, LAW OFFICE OF DENNIS GIBSON, Asheville, North
Carolina, for Appellant. Thomas Richard Ascik, Amy Elizabeth
Ray, Assistant United States Attorneys, Jill Westmoreland Rose,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Glenda Albright Adams appeals the ninety-seven-month
sentence imposed following her guilty plea to conspiracy to
possess with intent to distribute fifty grams or more of cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006).
Adams’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) Adams
conclusively showed that she received ineffective assistance;
(2) the Government engaged in prosecutorial misconduct; and
(3) the district court was biased in sentencing Adams. Adams
filed a pro se supplemental brief also raising the issue of
whether the Government and/or the district court engaged in
misconduct and asserting that counsel was ineffective for
failing to argue that she should have been placed in criminal
history category I. Finding no reversible error, we affirm.
In the Anders brief, counsel does not point to any
specific errors he may have committed in the district court, but
suggests that Adams received ineffective assistance because the
sentence was not what Adams expected to receive. In her pro se
supplemental brief, Adams suggests that counsel was ineffective
for failing to object to her criminal history category and
secure a safety-valve reduction under the sentencing guidelines.
3
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 [her] counsel did not
provide effective assistance.” United States v. Martinez, 136
F.3d 972, 979 (4th Cir. 1998). To prove ineffective assistance
in the context of a guilty plea, the defendant must satisfy two
requirements: (1) “that counsel’s representation fell below an
objective standard of reasonableness,” Strickland v. Washington,
466 U.S. 668, 688 (1984), and (2) “there is a reasonable
probability that, but for counsel’s errors, [s]he would not have
pleaded guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985). We conclude that the
record does not conclusively demonstrate that counsel was
ineffective; thus, we decline to consider Adams’s ineffective
assistance claims on direct appeal.
Counsel next questions whether the Government engaged
in prosecutorial misconduct but points to no specific instance
of misconduct. In her pro se supplemental brief, Adams claims
that the Government engaged in misconduct because she was
sentenced within the sentencing range established by her
original offense level of twenty-nine, even though she believed
the court had reduced her offense level by three. To succeed on
a claim of prosecutorial misconduct, the defendant must prove
that the prosecution’s conduct was, in fact, improper, and that
4
she was deprived of a fair trial because of the prejudicial
conduct. United States v. Allen, 491 F.3d 178, 191 (4th Cir.
2007). Upon review, we conclude that Adams has failed to
demonstrate that the Government acted improperly.
Counsel next questions whether the district court was
biased in imposing sentence by failing to adequately account for
Adams’s life experience, medical conditions, and participation
in substance abuse treatment. Adams also suggests in her pro se
supplemental brief that the district court engaged in misconduct
by sentencing her at offense level twenty-nine. Our review of
the proceedings reveals no evidence of bias against Adams. See
Liteky v. United States, 510 U.S. 540, 555 (1994) (discussing
standard). Therefore, this argument is meritless.
We also construe Adams’s pro se argument that the
district court engaged in misconduct by mistakenly sentencing
her at offense level twenty-nine as a challenge to the
procedural reasonableness of her sentence, specifically that the
district court improperly calculated the applicable sentencing
guidelines range. In reviewing a sentence, we must first ensure
that the district court did not commit any “significant
procedural error,” such as failing to properly calculate the
applicable guidelines range, failing to consider the 18 U.S.C.
§ 3553(a) (2006) factors, or failing to adequately explain the
sentence. Gall v. United States, 552 U.S. 38, 51 (2007). Our
5
review of the record leads us to conclude that the district
court did not abuse its discretion in sentencing Adams in
accordance with the Government’s recommendation. Id.
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 Adams, in writing, of her right to
petition the Supreme Court of the United States for further
review. If Adams 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
Adams. 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
6