UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5019
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MAURICE SYLVESTER BAILEY, a/k/a “Big Mo”,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00145-NCT-1)
Submitted: May 24, 2013 Decided: June 6, 2013
Before DAVIS, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dhamian A. Blue, BLUE STEPHENS & FELLERS LLP, Raleigh, North
Carolina, for Appellant. Andrew Charles Cochran, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Maurice Sylvester Bailey pleaded guilty, pursuant to a
written plea agreement, to possession with intent to distribute
35.2 grams of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B) (2006). The district court sentenced
Bailey to 108 months’ imprisonment. On appeal, counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), certifying that there are no meritorious issues for
appeal, but questioning the validity of Bailey’s guilty plea,
whether the search of Bailey’s residence violated the Fourth
Amendment, whether the district court abused its discretion by
imposing an unreasonable sentence, and whether Bailey’s trial
counsel was ineffective. Bailey’s pro se supplemental brief
raises a number of Fourth, Fifth, and Sixth Amendment claims.
The Government declined to file a responsive brief. Following a
careful review of the record, we affirm.
Because Bailey did not move in the district court to
withdraw his guilty plea, we review the Federal Rule of Criminal
Procedure 11 hearing for plain error. United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002). To prevail under
this standard, Bailey must establish that an error occurred, was
plain, and affected his substantial rights. United States v.
Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009). Our review of
the record establishes that the district court substantially
2
complied with Rule 11’s requirements, ensuring that Bailey’s
plea was knowing and voluntary.
Counsel also questions whether Bailey’s Fourth
Amendment rights were violated in the course of the search of
his residence. Because Bailey entered an unconditional guilty
plea, this claim is waived. “When a criminal defendant has
solemnly admitted in open court that he is in fact guilty of the
offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea.”
Tollett v. Henderson, 411 U.S. 258, 267 (1973). The right to
challenge on appeal a Fourth Amendment issue is a
nonjurisdictional defense and thus is forfeited by an
unconditional guilty plea. Haring v. Prosise, 462 U.S. 306, 320
(1983).
We review Bailey’s sentence under a deferential abuse-
of-discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). This review requires consideration of both the
procedural and substantive reasonableness of the sentence. Id.;
United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). After
determining whether the district court correctly calculated the
advisory Guidelines range, we must decide whether the court
considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed the
arguments presented by the parties, and sufficiently explained
3
the selected sentence. Lynn, 592 F.3d at 575-76; United States
v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).
Once we have determined that the sentence is free of
procedural error, we consider the substantive reasonableness of
the sentence, “tak[ing] into account the totality of the
circumstances.” Gall, 552 U.S. at 51; Lynn, 592 F.3d at 575.
If the sentence is within the appropriate Guidelines range, we
apply a presumption on appeal that the sentence is reasonable.
United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir.
2010). Such a presumption is rebutted only if the defendant
demonstrates “that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted).
The district court correctly calculated and considered
the advisory Guidelines range, and heard argument from counsel
and allocution from Bailey. The court considered the § 3553(a)
factors and explained that the within-Guidelines sentence was
warranted in light of Bailey’s criminal history and continued
drug activity. Further, neither counsel nor Bailey offers any
grounds to rebut the presumption on appeal that the within-
Guidelines sentence of 108 months’ imprisonment is substantively
reasonable. Accordingly, we conclude that the district court
did not abuse its discretion in sentencing Bailey.
4
Counsel also questions whether Bailey received
ineffective assistance of trial counsel. Claims of ineffective
assistance of counsel are generally not cognizable on direct
appeal, unless the record conclusively establishes counsel’s
“objectively unreasonable performance” and resulting prejudice.
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). The
record does not conclusively establish that trial counsel
rendered ineffective assistance to Bailey. Bailey must
therefore bring his allegation of ineffective assistance of
counsel in a 28 U.S.C.A. § 2255 (West Supp. 2012) motion, should
he wish to pursue such a claim. United States v. Baptiste, 596
F.3d 214, 216 n.1 (4th Cir. 2010).
Bailey’s pro se supplemental brief raises a number of
constitutional claims relating to the officers’ search of his
residence and statements he made to law enforcement officers.
However, as noted above, Bailey waived these claims upon
knowingly and voluntarily entering an unconditional guilty plea.
Finally, Bailey’s pro se supplemental brief challenges
the district court's reliance on facts outside of the indictment
to enhance his sentence based on drug quantity. Because Bailey
was not sentenced above the applicable statutory maximum,
Bailey’s constitutional challenge to the trial court’s fact-
finding is without merit. See United States v. Benkahla, 530
F.3d 300, 312 (4th Cir. 2008) (“Sentencing judges may find facts
5
relevant to determining a Guidelines range by a preponderance of
the evidence, so long as that Guidelines sentence is treated as
advisory and falls within the statutory maximum authorized by
the jury’s verdict.”); United States v. Young, 609 F.3d 348, 357
(4th Cir. 2010) (sentencing court is not “bound by the evidence
presented at trial when determining drug quantity or other
relevant conduct”).
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 Bailey, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Bailey 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 Bailey.
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
6