UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4099
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTWAN JORDAN, a/k/a Tweety Bird, a/k/a Bird,
Defendant - Appellant.
No. 10-4212
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PERCELL BURROWS, a/k/a Light,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Newport News. Jerome B. Friedman,
Senior District Judge. (4:08-cr-00147-JBF-FBS-7; 4:08-cr-00147-
JBF-FBS-5)
Submitted: July 1, 2011 Decided: July 12, 2011
Before WILKINSON, MOTZ, and KING, Circuit Judges.
No. 10-4099 dismissed; No. 10-4212 affirmed by unpublished per
curiam opinion.
Jeffrey M. Brandt, ROBINSON & BRANDT, PSC, Covington, Kentucky;
Jane C. Norman, BOND & NORMAN, Washington, DC, for Appellants.
Neil H. MacBride, United States Attorney, Howard J. Zlotnick,
Richard D. Cooke, Assistant United States Attorneys, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Antwan Jordan, pursuant to a written plea agreement,
and Percell Burrows, without a plea agreement, each pled guilty
to conspiracy to possess with intent to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2006). Jordan was sentenced to 168 months’
imprisonment, and Burrows was sentenced to 360 months’
imprisonment.
In these consolidated appeals, Jordan argues that he
should be relieved of the appellate waiver in his plea agreement
because the 168-month sentence is unreasonable and enforcing the
waiver under these circumstances would result in a miscarriage
of justice. The Government responds that the appeal waiver
should be enforced. Burrows argues (1) the amendment to U.S.
Sentencing Guidelines Manual § 2D1.1(a)(5), (b)(15) directed by
Chapter Seven of the Fair Sentencing Act retroactively operates
to reduce his base offense level from thirty-eight to thirty-two
and he is entitled to be resentenced; (2) the November 1, 2010,
amendment to USSG § 5H1.4 (“Amendment 739”) applies
retroactively to reduce his sentence based on his abuse of drugs
and alcohol because it is a clarifying amendment; (3) his plea
was not knowing and voluntary because the district court did not
advise him that he faced a sentence of 360 months’ to life
imprisonment; (4) he received ineffective assistance of counsel
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because counsel failed to obtain a written plea agreement on his
behalf explaining the Government’s position as to the drug
weight calculation and stating his Guidelines range; (5) the
district court erred in calculating the drug weight attributable
to him; and (6) the district court erred by denying him an
adjustment for acceptance of responsibility. We dismiss
Jordan’s appeal, and affirm Burrows’ conviction and sentence.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). United States v.
Manigan, 592 F.3d 621, 627 (4th Cir. 2010). We review the
validity of an appellate waiver de novo and will uphold a waiver
of appellate rights if the waiver is valid and the issue being
appealed is covered by the waiver. United States v. Blick, 408
F.3d 162, 168 (4th Cir. 2005). Our review of the record leads
us to conclude that Jordan validly waived the right to appeal
his sentence, and the issues that he seeks to raise on appeal
fall within the scope of the waiver.
We also find without merit Jordan’s claim that
enforcement of the waiver will result in a miscarriage of
justice. A miscarriage of justice in the context of an
appellate waiver occurs only when the resulting sentence is
based on consideration of an impermissible factor such as race,
ineffective assistance of counsel in connection with the waiver,
a sentence exceeding the statutory maximum, or otherwise
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unlawful waiver that seriously affects the fairness, integrity
or public reputation of judicial proceedings. United States v.
Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004). Jordan makes no
such showing here. Accordingly, we uphold Jordan’s appellate
waiver and dismiss his appeal.
Burrows argues that two of the 2010 amendments to the
U.S. Sentencing Guidelines Manual, effective November 1, 2010,
apply retroactively to reduce his sentence. Burrows argues that
the Amendment 748 to USSG § 2D1.1 (a)(5), (b)(15) as directed by
Chapter Seven of the Fair Sentencing Act, applies retroactively
to reduce his base offense level from thirty-eight to thirty-
two. In support, Burrows notes that Chapter Seven directs the
U.S. Sentencing Commission to amend the Sentencing Guidelines to
ensure that a defendant who is subject to a minimal role
adjustment is sentenced using a base offense level of no more
than thirty-two. Burrows claims that because he played a
minimal role in the drug conspiracy, he should be resentenced
using a base offense level of thirty-two. Burrows also argues
that Amendment 739, which amended USSG § 5H1.4 to allow for a
departure based on severe drug abuse or dependence, also applies
retroactively and provided a ground for the court to depart.
Because Burrows was sentenced in February 2010, neither of these
amendments were available to him. Burrows argues that this
Court should vacate his sentence and remand to the district
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court so that he can make a record to show that he is eligible
to receive the benefit of these amendments.
The determination of whether an amendment to the
Sentencing Guidelines applies retroactively to cases pending on
direct appeal turns on whether the amendment is a clarifying
amendment or a substantive one. United States v. Goines, 357
F.3d 469, 474 (4th Cir. 2004). A clarifying amendment is given
retroactive effect, while a substantive amendment is not. Id.
To distinguish between the two, we have defined a clarifying
amendment as one that “changes nothing concerning the legal
effect of the guidelines, but merely clarifies what the
Commission deems the guideline to have already meant.” United
States v. Capers, 61 F.3d 1100, 1109 (4th Cir. 1995). On the
other hand, a substantive amendment is one that “has the effect
of changing the law in this circuit.” Id. at 1110. We conclude
that the amendments in question are substantive and do not
retroactively apply to Burrows’ sentence.
We next turn to Burrows’ challenge to his guilty plea.
Because Burrows did not move in the district court to withdraw
his guilty plea, we review the Rule 11 hearing for plain error.
United States v. Martinez, 277 F.3d 517, 525-26 (4th Cir. 2002).
After thoroughly reviewing the transcript of the Rule 11
hearing, we discern no plain error.
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Burrows next asserts that he received ineffective
assistance of counsel because counsel failed to obtain a written
plea agreement on his behalf. However, unless an attorney’s
ineffectiveness is conclusively apparent on the face of the
record, ineffective assistance of counsel claims are not
generally addressed on direct appeal. United States v. Benton,
523 F.3d 424, 435 (4th Cir. 2008); United States v. Richardson,
195 F.3d 192, 198 (4th Cir. 1999) (providing standard and noting
that ineffective assistance of counsel claims generally should
be raised by motion under 28 U.S.C.A. § 2255 (West Supp. 2011)).
We find that counsel’s alleged ineffectiveness is not
conclusively apparent on the face of this record and decline to
consider this claim on direct appeal.
Burrows next argues that the district court erred in
calculating the drug weights attributable to him. A district
court’s finding regarding drug weights is factual in nature and
is therefore reviewed for clear error. United States v.
Fletcher, 74 F.3d 49, 55 (4th Cir. 1996). In conducting this
review, this Court gives due regard to the district court's
opportunity to judge the credibility of witnesses. 18 U.S.C. §
3742(e) (2006). Credibility determinations therefore receive
deference unless they are without support in the record. United
States v. Brown, 944 F.2d 1377, 1379-80 (7th Cir. 1991). Our
review of the record leads us to conclude that the district
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court did not clearly err in calculating the drug weight
attributable to Burrows.
Nor did the district court err in denying Burrows an
adjustment for acceptance of responsibility. A district court’s
determination regarding acceptance of responsibility is factual
in nature and will not be reversed unless clearly erroneous.
United States v. Hargrove, 478 F.3d 195, 198 (4th Cir. 2007).
Under USSG § 3E1.1 cmt. n.1(a), a defendant need not volunteer
or admit to relevant conduct to obtain a reduction for
acceptance of responsibility, but the reduction is not warranted
when a defendant falsely denies, or frivolously contests
relevant conduct that the court determines to be true. See
Elliott v. United States, 332 F.3d 753, 766 (4th Cir. 2003)
(affirming the denial of reduction for acceptance of
responsibility where defendant falsely denied relevant conduct).
Our review of the record leads us to conclude that the district
court did not clearly err in denying Burrows an adjustment for
acceptance of responsibility, as Burrows frivolously contested
the drug weight that was persuasively established by several
witnesses.
Accordingly, we dismiss Jordan’s appeal and affirm
Burrows’ conviction and sentence. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would
not aid the decisional process.
No. 10-4099 DISMISSED
No. 10-4212 AFFIRMED
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