US v. Ashley T. Brooks

Filing 920081014


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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4876 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ASHLEY TERRELL BROOKS, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:06-cr-00115-RJC) Submitted: September 30, 2008 Decided: October 14, 2008 Before GREGORY, SHEDD, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Ronald Cohen, Wilmington, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Adam Morris, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ashley Terrell Brooks pled guilty without a plea The agreement to possession of a firearm by a convicted felon. district court sentenced Brooks to 180 months in prison. timely appealed. Brooks Brooks first contends that his guilty plea was not knowing and voluntary because, at his plea hearing, both the Government and defense counsel misinformed him regarding his status as an armed career criminal. and voluntary guilty plea, a In order to enter a knowing must know the direct defendant consequences of his guilty plea. Brady v. United States, 397 U.S. 742, 755 (1970); Cuthrell v. Dir., Patuxent Inst., 475 F.2d 1364, 1365 (4th Cir. 1973). "Direct consequences" are defined "as those having a `definite, immediate and largely automatic effect on the range of the defendant's punishment.'" Bryant v. Cherry, 687 F.2d 48, 50 (4th Cir. 1982) (quoting Cuthrell, 475 F.2d at 1366). must be Under Fed. R. Crim. P. 11(b)(1)(I), a defendant of any mandatory minimum penalty for his informed offense. Although the Government and defense counsel expressed belief at the Fed. R. Crim. P. 11 hearing that Brooks was not an armed career criminal, both defense counsel and the magistrate judge noted that it was a possibility and the magistrate judge took great pains to ensure that Brooks understood that he might 2 qualify as an armed career offender and, if he did, he faced a mandatory minimum sentence of fifteen years in prison. Brooks stated at the plea hearing that he understood the situation and he is now bound by his statement. See Beck v. Angelone, 261 F.3d 377, 395-96 (4th Cir. 2001) (absent "clear and convincing evidence" to the contrary, defendant is bound by statements made under oath at Rule 11 hearing). We therefore find that Brooks' guilty plea was knowing and voluntary. Brooks also argues that counsel was ineffective for failing to advise him that he qualified as an armed career criminal and therefore faced an enhanced penalty. Claims of ineffective assistance of counsel generally are not cognizable on direct appeal. Cir. 1997). record, 2255 a United States v. King, 119 F.3d 290, 295 (4th Rather, to allow for adequate development of the defendant Supp. must 2008) bring his claims Id.; in a 28 U.S.C.A. v. (West motion. United States Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate both that his attorney's performance fell below an objective standard of reasonableness and that counsel's deficient performance was prejudicial. To satisfy Strickland v. Washington, 466 U.S. 668, 687 (1984). the prejudice prong of the Strickland test in the context of a guilty plea, a defendant "must show that there is a reasonable 3 probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." v. Lockhart, 474 U.S. 52, 59 (1985). Here, the record does not conclusively show that Hill Brooks was denied effective assistance of counsel. Assuming arguendo that counsel was or should have been aware at the time of Brooks' guilty plea that Brooks and qualified have for so the armed his The career criminal designation should advised client, Brooks was not prejudiced by the alleged error. magistrate judge warned Brooks at the plea hearing that he might be subject to the armed career criminal enhancement and, even with this knowledge, Brooks elected to plead guilty. Because it does not appear conclusively from the record that counsel was ineffective, Brooks' claim is not cognizable on direct appeal. Brooks also asserts that the district court failed to adequately state the reasons for the sentence imposed or to sufficiently consider mitigating circumstances. claim to be meritless. This court reviews the sentence We find this imposed by the district court for abuse of discretion. Gall v. United States, 128 S. Ct. 586, 597 (2007); United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The appellate court must first ensure that the district court committed no "significant" procedural errors, such as "failing to 4 calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the 3553(a) factors, selecting a sentence based on clearly the erroneous facts, -- or failing to an adequately explain chosen sentence including explanation for any deviation from the Guidelines range." 128 S. Ct. at 597. Gall, If the appellate court concludes that the sentence is "procedurally sound," the court then considers the substantive reasonableness of the sentence. Id. "Substantive reasonableness review entails taking into account the `totality of the circumstances, including the extent of any variance from the Guidelines range.'" 128 S. Ct. at 597). In this case, the district court correctly calculated the guideline range, treated the guidelines as advisory, and considered the 3553(a) factors before imposing a sentence at the bottom of the guideline range and at the statutory mandatory minimum. Because the sentence was within the guideline range, Pauley, 511 F.3d at 473 (quoting Gall, we afford it a presumption of reasonableness which Brooks has failed to rebut. United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding presumption of reasonableness we are for withinthat the guidelines sentence). Therefore, satisfied 5 sentence was reasonable and the district court did not abuse its discretion in imposing it. 1 For these reasons, we affirm Brooks' conviction and sentence. 2 legal before We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional contentions the court would process. AFFIRMED Brooks also cursorily asserts that his sentence enhancement under the Armed Career Criminal Act, 18 U.S.C.A. 924(e)(1) (West 2000 & Supp. 2008), violates the Sixth Amendment because his prior convictions were not submitted to a jury, proved beyond a reasonable doubt, or admitted by him. We have previously rejected this argument. United States v. Cheek, 415 F.3d 349, 352-54 (4th Cir. 2005); see also United States v. Thompson, 421 F.3d 278, 283 (4th Cir. 2005). We grants Brooks' motion to file a pro se supplemental brief and find the claims therein to be without merit. 2 1 6

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