United States v. Sandra Dean

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4990

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

SANDRA D. DEAN,

Defendant – Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:09-cr-00893-HFF-2)

Submitted: June 23, 2011 Decided: July 15, 2011

Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

J. Bradley Bennett, SALVINI & BENNETT, LLC, Greenville, South
Carolina, for Appellant. William Jacob Watkins, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Sandra D. Dean pled guilty to conspiracy to possess

with intent to distribute methamphetamine. The district court

sentenced her to ninety-six months’ imprisonment. Dean’s

counsel filed a brief in accordance with Anders v. California,

386 U.S. 738 (1967), stating that, in counsel’s view, there are

no meritorious issues for appeal, but questioning whether Dean’s

sentence was reasonable. Dean has filed a pro se brief

challenging factual statements in the presentence report,

asserting that she was promised a downward departure for

assistance, and contending that her counsel was ineffective.

Finding no reversible error, we affirm.

In the absence of a motion to withdraw a guilty plea,

this court reviews the adequacy of the guilty plea pursuant to

Fed. R. Crim. P. 11 for plain error. See United States v.

Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Our review of the

transcript of the plea hearing leads us to conclude that the

district court fully complied with Rule 11 in accepting Dean’s

guilty plea. The court ensured that Dean understood the charge

against her and the potential sentence she faced, that she

entered her plea knowingly and voluntarily, and that the plea

was supported by an independent factual basis. See United

States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).

Accordingly, we affirm Dean’s conviction.

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We have also reviewed Dean’s sentence and determine

that it was properly calculated and that the sentence imposed is

reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007);

see United States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010).

The district court followed the necessary procedural steps in

sentencing Dean, appropriately treated the Sentencing Guidelines

as advisory, properly calculated and considered the applicable

Guidelines range, and weighed the relevant 18 U.S.C. § 3553(a)

(2006) factors. 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. 2010)

(quoting Rita v. United States, 551 U.S. 338, 356 (2007)

(“[W]hen a judge decides simply to apply the Guidelines to a

particular case, doing so will not necessarily require lengthy

explanation.”)); see also United States v. Johnson, 445 F.3d

339, 345 (4th Cir. 2006) (explaining that a district court need

not “robotically tick through” each subsection of § 3553(a)).

Here, after hearing the argument of counsel as to the

application of the sentencing factors, the court imposed a

sentence in the middle of the applicable Guidelines range. The

court specifically noted that Dean and her husband were within

the same advisory Guidelines range, but, due to her greater

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criminal history, Dean received a higher sentence. We conclude

the district court did not abuse its discretion in imposing the

chosen sentence. See Gall, 552 U.S. at 41; United States v.

Allen, 491 F.3d 178, 193 (4th Cir. 2007) (applying appellate

presumption of reasonableness to within-Guidelines sentence).

In her pro se brief, Dean contends that she only

purchased Sudafed and did not manufacture methamphetamine and

did not know the co-defendants. These statements do not negate

her knowing and voluntary guilty plea to conspiracy. See United

States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993) (“[O]ne may

be a member of a conspiracy without knowing its full scope, or

all its members, and without taking part in the full range of

its activities over the whole period of its existence.”).

Also in her pro se brief, Dean contends that she

should have received a downward departure due to her cooperation

with authorities. Absent a cooperation agreement and promise of

such a departure, a downward departure based on substantial

assistance is within the discretion of the Government. The

record evinces no abuse of discretion.

The final issue asserted in Dean’s pro se brief is

that counsel provided constitutionally ineffective assistance

with respect to her sentencing by only discussing the

presentence investigation report with her by phone and by

failing to have a corrected version of the presentence report

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prepared. Claims of ineffective assistance of counsel are not

cognizable on direct appeal unless the record conclusively

establishes counsel’s constitutionally inadequate performance.

United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).

Because the record does not conclusively demonstrate that Dean’s

counsel was ineffective, we decline to consider this claim on

direct appeal.

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. This court requires that counsel inform Dean, in

writing, of the right to petition the Supreme Court of the

United States for further review. If Dean 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 Dean. 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