US v. Marcus Twitty

Filing 920090116

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4987 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARCUS ANTWON TWITTY, a/k/a Marcus Antwan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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 8

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