US v. Marcus Twitty

Filing 920090116

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4987

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARCUS ANTWON TWITTY, a/k/a Marcus Antwan Young, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:06-cr-00250-LHT)

Submitted:

December 18, 2008

Decided:

January 16, 2009

Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE, Raleigh, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina; Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Marcus Antwon Twitty pled guilty, pursuant to a

written plea agreement, to one count of conspiracy to possess with intent to distribute cocaine and methamphetamine, 21 U.S.C. § 846 (2006), and was sentenced to 235 months imprisonment.

Twitty's attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which she asserts that there are no meritorious issues for appeal but raises the following potential claims: (1) the district court abused its discretion

in denying Twitty's motion for substitution of counsel; (2) the district court plainly erred in applying a two-level enhancement for possession of a weapon, U.S. Sentencing Guidelines Manual (USSG) § 2D1.1; (3) the district court plainly erred in applying a two-level (4) enhancement the district history for obstruction plainly (5) of erred justice, in USSG

§ 3C1.2; Twitty's

court score;

computing was

criminal

Twitty's

sentence

unreasonable; and, (6) trial counsel was ineffective.

Although

advised of his right to file a supplemental pro se brief, Twitty has not done so. Counsel erred in denying first questions motion whether for new the district court At the

Twitty's

counsel.

hearing on his motion, Twitty stated that he was upset with his court-appointed counsel because he (the attorney) had come to visit Twitty in jail and spoken with him in a public place. 2 The

district court noted for the record that the jail where Twitty was incarcerated has one private room for attorney-client

meetings and that the room is available on a first-come firstserved basis. After asking Twitty if he was sure that he still

wanted another lawyer, Twitty responded: "It's not that I don't want him as a lawyer, because he has come to see me twice It's

already, three times talked to me.

So I appreciate that.

just the point that I couldn't go nowhere else and talk to him. I didn't feel comfortable with other inmates in there." We find

that Twitty's sworn statements at the hearing indicated that he abandoned his claim for substitution of counsel. In any event,

his statements failed to establish a conflict with his attorney that resulted in a "total lack of communication" sufficient to support States his v. motion Reevey, for 364 substitution F.3d 151, of counsel. (4th See Cir. United 2004).

156

Accordingly, the district court did not abuse its discretion in denying his motion. Next, counsel questions the two-level enhancement Because Twitty's Under

Twitty received for possession of a dangerous weapon. no objections were made in the district court,

challenges to his sentence are reviewed for plain error.

USSG § 2D1.1(b)(1), a two-level enhancement "shall be imposed if a dangerous weapon, including a firearm, was possessed during a narcotics offense." The adjustment is applied "if the weapon 3

was present, unless it is clearly improbable that the weapon was connected (n.3). with the offense." USSG § 2D1.1(b)(1), comment.

In order to demonstrate that a weapon was present, the need show only that "the weapon was possessed in

Government

connection with drug activity that was part of the same course of conduct or common v. scheme as 272 the F.3d offense 228, of conviction." (4th Cir. Here,

United

States

McAllister,

233-34

2001) (internal quotation marks and citation omitted). the that enhancement he carried was a applied .22 based on Twitty's with

acknowledgment him when he

caliber

revolver

conducted drug transactions. to support the enhancement. Counsel next

We find that this was sufficient

questions

the

two-level

enhancement

Twitty received for obstruction of justice. not object to a this recommendation. adjustment

Again, Twitty did 3C1.2, USSG,

Section when

provides

for

two-level

"the

defendant

recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer." The PSR recommended the enhancement

because Twitty fled from the police at the time of his arrest, recklessly drove his vehicle away from a vehicle stop and later abandoned his vehicle causing the officer to follow him on foot. We find that, on these facts, the district court did not commit plain error in applying the enhancement. 4 See United States v.

Sykes, 4 F.3d 697, 700 (8th Cir. 1993) (failing to pull over and thereby compelling police to force defendant off road

constitutes reckless endangerment). Next, counsel asserts that the district court erred in computing Twitty's criminal history points. The PSR found that Twitty had a total of 11 criminal history points based on his prior convictions. Twitty now asserts that the Government

failed to prove that some of the convictions listed in the PSR under the name "Marcus Young" were in fact his (Twitty's)

convictions.

Counsel concedes, however that "nothing appears to Twitty's criminal

contradict the information found" in the PSR.

history score was based, in part, on five convictions identified in the PSR which noted that Twitty was convicted under the name Marcus Antwon (or Antwan) Young. Because Twitty has offered no

evidence to support his claim that the convictions were not his, this claim fails as well. F.3d 195, 210-11 (4th Cir. See United States v. Randall, 171 1999) (noting that, where "the

district court relies on information in the presentence report . . . in making findings, the the defendant relied bears on the burden of

establishing

that

information

by

the

district

court . . . is incorrect; mere objections are insufficient."). Counsel also questions the reasonableness of Twitty's sentence. Specifically, Twitty asserts that: (1) the district court did not adequately consider his family and mental health 5

history before imposing the sentence; and (2) the sentence was greater (2006). This district court court as will long affirm as it a is sentence within imposed the by the than necessary to comply with 18 U.S.C. § 3553(a)

statutorily

prescribed range and is reasonable. 401 F.3d 540, 547 (4th Cir.

United States v. Hughes, In assessing the

2005).

reasonableness of the sentence, this court focuses on whether the district court abused its discretion in imposing the

sentence. 2007).

United States v. Pauley, 511 F.3d 468, 473 (4th Cir. The sentence is first examined for significant

procedural errors, and then the court looks at the substance of the sentence. Id. A sentence within a properly calculated United

sentencing guideline range is presumptively reasonable. States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).

In evaluating the district court's explanation of a selected sentence, we have held that the district court "need not robotically tick through § 3553(a)'s every subsection," but need only "provide [this court] an assurance that the sentencing court considered the § 3553(a) factors with regard to the

particular defendant." 657 (4th Cir. 2007)

United States v. Moulden, 478 F.3d 652, (internal quotation marks and citation

omitted).

On appellate review, this court will not evaluate the

adequacy of the sentencing court's explanation for its sentence 6

"in

a

vacuum,"

but

rather

will

consider

"[t]he

context

surrounding [its] explanation."

United States v. Montes-Pineda, Here, the PSR detailed

445 F.3d 375, 381 (4th Cir. 2006).

Twitty's history of substance abuse and his family history, and that he had received mental health treatment in the past. At

the conclusion of the sentencing hearing, the district court noted that it had considered the information contained in the presentence report. The district court properly calculated the Guidelines range, considered that range in conjunction with the factors set forth in 18 U.S.C. § 3553(a), and determined an appropriate

sentence within the Guidelines range.

Applying the presumption

of reasonableness afforded sentences within the Guidelines range and Twitty's failure to rebut that presumption on appeal, we conclude that his 235-month sentence is reasonable. See Rita v.

United States, 127 S. Ct. 2456, 2462-69 (2007); United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008). Lastly, counsel raises a number of claims of

ineffective assistance of counsel. for adequate development of the

However, in order to allow record, a defendant must

ordinarily bring a claim of ineffective assistance of counsel in a 28 U.S.C. § 2255 (2000) motion unless it conclusively appears on the face of the record that counsel provided inadequate

assistance.

United States v. Richardson, 195 F.3d 192, 198 (4th 7

Cir. 1999).

The record in this case does not conclusively show

ineffectiveness. In accordance with Anders, we have reviewed the 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 Twitty, in writing, of the right to petition review. the If Supreme Twitty Court of the that United a States be for further but

requests

petition

filed,

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 Twitty. 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

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