UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4174
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHAKIRIS LAGEORGE RAMSEY, a/k/a Chakiris Legeorge Ramsey,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:07-cr-00050-RLV-DSC-5)
Submitted: June 9, 2011 Decided: June 17, 2011
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joseph R. Conte, LAW OFFICES OF J.R. CONTE, P.L.L.C.,
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Unpublished opinions are not binding precedent in this circuit.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:
Chakiris Lageorge Ramsey appeals his conviction after
a guilty plea and 147-month sentence for one count of conspiracy
to possess with intent to distribute a quantity of cocaine and
cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(A), 846
(2006); one count of possession with intent to distribute a
quantity of cocaine base in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C) (2006); and one count of using and carrying a firearm
during and in relation to a drug trafficking crime in violation
of 18 U.S.C. § 924(c)(1) (2006). On appeal, counsel for Ramsey
has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), certifying that there are no meritorious issues
for appeal but questioning whether the district court complied
with the mandates of Fed. R. Crim. P. 11, whether Ramsey’s
sentence was reasonable, whether Ramsey executed a valid waiver
of his appellate rights, and whether trial counsel was
ineffective. The Government has elected not to file a brief,
and although Ramsey was notified of his right to file a pro se
supplemental brief, he has not done so. We affirm.
I. Appeal Waiver
Counsel argues in the Anders brief that Ramsey validly
waived his right to appeal. The Government, however, has not
filed a brief in this court invoking the appellate waiver or
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moved to dismiss this appeal. Thus, despite the existence of an
appeal waiver, this court will conduct the required Anders
review. See United States v. Poindexter, 492 F.3d 263, 271
(4th Cir. 2007) (noting that if the government does nothing in
response to an Anders brief in a case where the appellant has
waived his right to appeal, the court will perform the required
Anders review); see also United States v. Metzger, 3 F.3d 756,
757-58 (4th Cir. 1993) (holding that the government’s failure to
assert an appeal waiver as a bar to the appeal constitutes a
waiver of reliance on the appeal waiver).
II. Adequacy of the Rule 11 Hearing
Because Ramsey did not move in the district court to
withdraw his guilty plea, any error in the Rule 11 hearing is
reviewed for plain error. United States v. Martinez, 277 F.3d
517, 525-26 (4th Cir. 2002). To establish plain error, he “must
show: (1) an error was made; (2) the error is plain; and
(3) the error affects substantial rights.” United States v.
Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009) (reviewing
unpreserved Rule 11 error). “The decision to correct the error
lies within [this court’s] discretion, and [the court]
exercise[s] that discretion only if the error seriously affects
the fairness, integrity or public reputation of judicial
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proceedings.” Id. at 343 (internal quotation marks omitted).
The defendant bears the burden of showing plain error.
We have reviewed the record and find no error. The
district court went to some length to explain how the sentence
would be calculated and the rights that Ramsey abandoned by
pleading guilty, and to establish a factual basis for the plea.
Because Ramsey’s plea was knowing, voluntary, and supported by
an adequate factual basis, we conclude that the plea was
properly accepted by the district court.
III. Sentence
Ramsey’s original advisory Guidelines range was 168 to
210 months, plus a mandatory five year consecutive sentence
pursuant to 18 U.S.C. § 924(e) (2006), because Ramsey was
convicted of violating 18 U.S.C. § 924(c)(1). The Government
moved for a downward departure due to Ramsey’s substantial
assistance. The court granted the motion, and Ramsey’s revised
advisory Guidelines range was 108 to 135 months plus the five
year mandatory consecutive sentence. The district court imposed
a sentence of eighty-seven months plus five years, for a total
of 147 months — significantly below the low end of Ramsey’s
revised advisory Guidelines range.
An appellate court reviews a sentence for
reasonableness under an abuse-of-discretion standard. Gall v.
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United States, 552 U.S. 38, 51 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of a sentence. Id. First, the court must assess
whether the district court properly calculated the Guidelines
range, considered the § 3553(a) factors, analyzed any arguments
presented by the parties, and sufficiently explained the
selected sentence. Id. at 49-50; see United States v. Lynn, 592
F.3d 572, 576 (4th Cir. 2010) (“[A]n individualized explanation
must accompany every sentence.”); United States v. Carter, 564
F.3d 325, 330 (4th Cir. 2009) (same). An extensive explanation
is not required as long as the appellate court is satisfied
“‘that [the district court] has considered the parties’
arguments and has a reasoned basis for exercising [its] own
legal decisionmaking authority.’” United States v. Engle, 592
F.3d 495, 500 (4th Cir.) (quoting Rita v. United States, 551
U.S. 338, 356 (2007)), cert. denied, 131 S. Ct. 165 (2010).
While we note that the district court imposed a
sentence with little to no explanation, we decline to notice the
error. Counsel, in the Anders brief, recognizes that the court
did not explain its sentence, but nevertheless suggests that the
sentence should be affirmed. We have independently reviewed the
record, and we agree. Ramsey received a significant departure
from his original Guidelines range and received a sentence
nearly two years less than the low end of his revised Guidelines
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range. In these circumstances, we conclude that the sentence
was procedurally reasonable.
Turning to the substantive reasonableness of the
sentence, this court presumes on appeal that a sentence within a
properly calculated Guidelines range is reasonable. United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). Ramsey’s
sentence was considerably lower than his advisory Guidelines
range. To the extent that the Anders brief seeks review of the
extent of the downward departure, this court lacks jurisdiction
to hear such a claim. United States v. Hill, 70 F.3d 321, 324
(4th Cir. 1994). Accordingly, the sentence was substantively
reasonable.
IV. Ineffective Assistance of Counsel
Counsel next addresses whether trial counsel was
ineffective. Claims of ineffective assistance of counsel
generally are not cognizable on direct appeal. United States v.
King, 119 F.3d 290, 295 (4th Cir. 1997). Rather, to allow for
adequate development of the record, a defendant generally must
bring his claims in a 28 U.S.C.A. § 2255 (West Supp. 2010)
motion. Id.; United States v. Hoyle, 33 F.3d 415, 418
(4th Cir. 1994). However, ineffective assistance claims are
cognizable on direct appeal if the record conclusively
establishes ineffective assistance. United States v.
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Richardson, 195 F.3d 192, 198 (4th Cir. 1999); King, 119 F.3d at
295.
We have reviewed the record, and we conclude that
ineffective assistance of counsel is not conclusive on the
record’s face. Thus, this claim is not cognizable on direct
appeal.
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 Ramsey, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Ramsey 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 thereof
was served on Ramsey.
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
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