UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4465
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHUCK PARKER COLLINGTON, a/k/a Chuck Berry Collington,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:09-cr-00342-RBH-1)
Submitted: February 28, 2011 Decided: March 21, 2011
Before WILKINSON, NIEMEYER, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert M. Sneed, ROB SNEED LAW FIRM, LLC, Greenville, South
Carolina, for Appellant. Alfred William Walker Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Chuck Collington
pled guilty to possession with intent to distribute five grams
or more of cocaine base, 21 U.S.C. § 841(a)(1) (2006). He was
sentenced to thirty years in prison. Collington now appeals.
His attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), raising one issue but stating
that there are no grounds for appeal. Collington has filed a
pro se brief and several supplements to that brief
(collectively, the supplemental brief). We affirm.
I.
In the Anders brief, counsel contends that the
district court erroneously denied Collington’s motion to
suppress evidence seized during a traffic stop. In his
supplemental brief, Collington raises additional Fourth and
Fifth Amendment issues pertaining to the stop and the related
suppression hearing.
A valid guilty plea waives all prior non-
jurisdictional defects. Tollett v. Henderson, 411 U.S. 258, 267
(1973); United States v. Willis, 992 F.2d 489, 490 (4th Cir.
2
1993). 1 After reviewing the transcript of Collington’s Fed. R.
Crim. P. 11 proceeding, we conclude that the district court
fully complied with that Rule, that Collington’s plea was
knowingly and voluntarily entered, and that there was a factual
basis for the plea. Accordingly, Collington’s valid guilty plea
constituted a waiver of his right to raise issues related to the
suppression motion.
II.
In the supplemental brief, Collington contends that
the Government breached the plea agreement when: (1) his offense
level was not adjusted based on acceptance of responsibility;
(2) the United States failed to move for a reduction of sentence
based on his substantial assistance to the Government; and
(3) the district court questioned him at sentencing about a
homicide. Because these claims were not raised below, our
review is for plain error. See United States v. Olano, 507 U.S.
725, 732-37 (1993). To establish plain error, the defendant
must show that: (1) an error occurred; (2) the error was plain;
and (3) the error affected his substantial rights. Id. at 732.
Even when the defendant makes this showing, we will exercise our
1
Collington’s claim in the supplemental brief that his
indictment was defective also is waived under the cited
authorities.
3
discretion to notice the error only if the error “seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Id. (internal quotation marks omitted).
With respect to acceptance of responsibility, the plea
agreement provided that, if the district court determined that
Collington had “readily demonstrated acceptance of
responsibility,” U.S. Sentencing Guidelines Manual § 3E1.1
(2008) would apply. The record reveals that Collington
received a two-level enhancement based on obstruction of
justice. See USSG § 3C1.1. In light of this enhancement,
Collington did not accept responsibility for the offense, and he
was not entitled to a reduction based on acceptance of
responsibility. See USSG § 3E1.1, cmt. n.4.
With regard to substantial assistance, the decision
whether to file a USSG § 5K1.1 motion based on such assistance
lies solely within the Government’s discretion. See United
States v. Butler, 272 F.3d 683, 686 (4th Cir. 2001). Thus,
unless the Government has obligated itself in the plea agreement
to make such a motion, its refusal to make a § 5K1.1 motion is
not reviewable on appeal absent evidence of an unconstitutional
motive. Wade v. United States, 504 U.S. 181, 185-87 (1992);
Butler, 272 F.3d at 686.
Here, the Government did not obligate itself in the
plea agreement to make a § 5K1.1 motion. The plea agreement
4
provided in pertinent part that the Government would make such a
motion if Collington cooperated and the Government deemed his
cooperation to be substantial assistance. The Government’s
discretionary decision not to move for a reduction is not
reviewable because there is no evidence that the decision was
based on an unconstitutional motive.
Finally, Collington contends that, while the plea
agreement stated that he would not be questioned in connection
with any homicide, the district court asked him about a murder
at sentencing. This questioning, he contends, breached the plea
agreement. We find this claim to lack merit because the plea
agreement provided that, while Collington would not be
questioned in connection with any homicide, the agreement also
stated that the provision did not apply to information known to
the Government prior to the date of the plea agreement. Because
the Government knew at the time of the plea agreement of a
homicide committed by Collington in 2004, the district court’s
question at sentencing was not a breach of Collington’s
agreement with the Government.
III.
Collington contends that the district court erred by
applying the wrong crack-to-powder cocaine ratio and that the
court incorrectly calculated the amount of drugs constituting
5
relevant conduct. Because Collington’s advisory Guidelines
range was determined based on the murder cross-reference, rather
than by reference to the Drug Quantity Table, there was no plain
error. See United States v. Olano, 507 U.S. at 732.
IV.
Following preparation of the presentence investigation
report (PSR), the parties agreed upon a sentence of thirty
years. At sentencing, Collington repeatedly assured the court
that he had agreed to this sentence freely and voluntarily after
having sufficient time to discuss the matter with his attorney.
Collington argues for the first time on appeal that
his plea was invalid because he was told that if he did not
abandon any objection to the thirty-year sentence, he would be
sentenced to life in prison. 2 He also claims that he was not
told that the homicide would be used in determining his advisory
Guidelines range. Notably, Collington did not move at
sentencing or at any other time to withdraw his guilty plea.
Further, his assertions are at odds with his representations at
his Rule 11 hearing that he understood the concept of relevant
conduct and that his plea was made voluntarily. The assertions
2
We note that the maximum penalty for the offense is not
life, but forty years in prison. See 21 U.S.C. § 841(b)(1)(B)
(2006).
6
also conflict with his several assurances to the court at
sentencing that he had voluntarily agreed to the thirty-year
sentence after consultation with his attorney. Under these
circumstances, we find no plain error with respect to
Collington’s claim that his plea was invalid. See Blackledge v.
Allison, 431 U.S. 63, 73-74 (1978); United States v. Stewart,
198 F.3d 984, 987 (7th Cir. 1999); United States v. DeFusco, 949
F.2d 114, 119 (4th Cir. 1991).
V.
Collington contends for the first time on appeal that
he was entitled to the benefit of the safety valve provision.
See 18 U.S.C. § 3553(f) (2006); USSG § 5C1.2. The provision
properly was not applied because Collington used violence in
connection with the offense. See United States v. Beltran-
Ortiz, 91 F.3d 665, 669 (4th Cir. 1996). Collington’s failure
to receive the benefit of this provision was not plain error.
See United States v. Olano, 507 U.S. at 732.
VI.
Collington contends that his attorney was ineffective
because of a conflict of interest. Our review of the official
district court docket sheet reveals that counsel filed a motion
for a hearing on whether a conflict of interest existed because
7
of his representation of both Collington and an individual who
was expected to testify at Collington’s sentencing.
Collington’s attorney also filed a motion to subpoena a
different individual who could testify as to whether certain
Government witnesses expected to testify at Collington’s
sentencing about the murder were, in fact, witnesses to the
murder.
To allow for adequate development of the record, a
defendant ordinarily must raise a claim of ineffective
assistance of counsel in a 28 U.S.C.A. § 2255 (West Supp. 2010)
motion unless it conclusively appears on the face of the record
that counsel provided inadequate assistance. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Because no
witnesses testified at Collington’s sentencing, we conclude that
the record does not conclusively establish ineffective
assistance. 3
VII.
Collington contends that he was improperly assessed
one criminal history point for marijuana possession. This issue
3
In a related claim, Collington complains that certain
docket entries pertaining to these matters are missing from the
district court’s docket sheet. We have reviewed the official
docket sheet and all pertinent documents, some of which are
sealed. We conclude that the official docket sheet is complete.
8
was not preserved for appeal, and our review is for plain error.
See United States v. Olano, 507 U.S. at 732. The PSR discloses
that Collington received one point for a 2005 conviction of
simple marijuana possession, for which he received a fine. A
misdemeanor marijuana conviction merits the one-point assessment
under USSG § 4A1.1(c). United States v. Russell, 564 F.3d 200,
206 (3rd Cir. 2009). There was no plain error.
VIII.
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none. We therefore
affirm. This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the
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 was served on the client. We deny the motion
to disclose grand jury materials and 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
9