UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4652
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYQUAY CHARLES WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:12-cr-00096-IMK-JES-1)
Submitted: April 19, 2016 Decided: April 21, 2016
Before AGEE, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles T. Berry, Fairmont, West Virginia, for Appellant.
Randolph John Bernard, OFFICE OF THE UNITED STATES ATTORNEY,
Wheeling, West Virginia, Andrew R. Cogar, Assistant United
States Attorney, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tyquay Charles Williams appeals his conviction and 78-month
sentence * imposed following his guilty plea to distribution of
cocaine base within 1000 feet of a playground, in violation of
21 U.S.C. §§ 841(a)(1), 860(a) (2012). On appeal, counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious issues for appeal
but questioning whether trial counsel rendered ineffective
assistance and whether Williams’ sentence was the result of
prosecutorial misconduct. Williams was notified of his right to
file a pro se supplemental brief but has not done so. The
Government has declined to file a response brief. For the
reasons that follow, we affirm.
Counsel first questions whether Williams’ trial counsel was
ineffective in promising Williams that he would be eligible for
a safety valve sentencing reduction, encouraging him to
stipulate to an erroneous drug quantity, and failing to note an
appeal. Unless an attorney’s ineffectiveness conclusively
appears on the face of the record, ineffective assistance claims
generally are not addressed on direct appeal. United States v.
Benton, 523 F.3d 424, 435 (4th Cir. 2008). Instead, such claims
*
Although Williams was originally sentenced to 97 months’
imprisonment, his sentence has since been reduced pursuant to
18 U.S.C. § 3582(c)(2) (2012).
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should be raised in a motion brought pursuant to 28 U.S.C.
§ 2255 (2012), in order to permit adequate development of the
record. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th
Cir. 2010). Because ineffective assistance does not
conclusively appear in the record, Williams’ claims should be
raised, if at all, in a § 2255 motion.
Counsel also questions whether Williams’ sentence was
tainted by prosecutorial misconduct, based on an allegedly
erroneous drug weight stipulation entered by the parties in
Williams’ plea agreement. To establish prosecutorial
misconduct, Williams must demonstrate that the prosecutor’s
conduct was improper and that it prejudicially affected his
substantial rights. United States v. Caro, 597 F.3d 608, 624-25
(4th Cir. 2010); see also United States v. Armstrong, 517 U.S.
456, 464 (1996) (noting presumption of regularity accorded
prosecutorial decisions). Because Williams did not raise this
issue in the district court, our review is for plain error.
United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005).
Although the stipulated drug weight was higher than that
calculated by the probation officer or identified by the
Government at sentencing, we conclude the record is insufficient
to demonstrate that the parties’ stipulation was the product of
any misconduct by the Government.
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In accordance with Anders, we have reviewed the entire
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 Williams, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Williams 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 Williams.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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