US v. Leroy Parham

Filing 920091028

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4342

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEROY PARHAM, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:07-cr-00121-RBS-JEB-1)

Submitted:

September 29, 2009

Decided:

October 28, 2009

Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Cristin Traylor, MCGUIRE WOODS LLP, Richmond, Virginia, for Appellant. D. Monique Broadnax, Special Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Leroy Parham pleaded guilty to possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a) (2006). Parham was sentenced to ninety-six months of

imprisonment and now appeals.

His attorney has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), raising three issues but stating that there are no meritorious issues for appeal. Parham filed a pro se supplemental brief raising an We affirm. Anders erred in brief, counsel questions whether plea in the as the

additional issue. * In district knowing the

court and

accepting Because

Parham's did

guilty not move

voluntary.

Parham

district court to withdraw his guilty plea, any error in the Fed. R. Crim. P. 11 hearing is reviewed for plain error. See

United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Furthermore, there is a strong presumption that a defendant's guilty plea is binding and voluntary if he has received an

adequate Fed. R. Crim. P. 11 hearing.

United States v. Puckett,

61 F.3d 1092, 1099 (4th Cir. 1995); see Blackledge v. Allison, 431 U.S. 63, 74 (1977) (finding that statements made during a plea hearing "carry a strong presumption of verity"). Our

We have considered the claim raised in Parham's pro se brief and conclude the claim lacks merit.

*

2

review of the record discloses that the district court fully complied with Rule 11. We conclude, therefore, that the

district court did not err in accepting Parham's guilty plea as knowing and voluntary. Counsel next questions whether Parham's trial counsel was ineffective. To prove a claim of ineffective assistance of

counsel, a defendant must show (1) "that counsel's performance was deficient," the and (2) "that the deficient performance 466 U.S. "the

prejudiced 668, 687

defense." With

Strickland v. respect to

Washington, first

(1984).

the

prong,

defendant must show that counsel's performance fell below an objective standard of reasonableness." Id. at 688. In

addition, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689. Under the second prong of the

test in the context of a conviction following a guilty plea, a defendant can show prejudice only by demonstrating "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."

Hill v. Lockhart, 474 U.S. 52, 59 (1985). This court may address a claim of ineffective

assistance on direct appeal only if the lawyer's ineffectiveness conclusively Baldovinos, thoroughly appears 434 F.3d on 233, the 239 record. (4th and Cir. United 2006). that States We Parham v. have has

reviewed

the

record 3

conclude

failed to demonstrate that ineffective assistance conclusively appears on the record and, therefore, we decline to address this claim on direct appeal. Finally, counsel questions whether the district court erred in sentencing Parham. an We abuse review of a sentence for

reasonableness,

applying

discretion

standard.

Gall v. United States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009), petition for cert. filed (U.S. July 24, 2009) (No. 09-5584). In so doing, we first examine the sentence for

"significant procedural error," including "failing to calculate (or improperly calculating) the [g]uidelines range, treating the [g]uidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence . . . ." then "`consider[s] the Gall, 128 S. Ct. at 597. substantive This court of the

reasonableness

sentence imposed.'"

United States v. Evans, 526 F.3d 155, 161

(4th Cir.) (quoting Gall, 128 S. Ct. at 597), cert. denied, 129 S. Ct. 476 (2008). taking into the account extent "Substantive reasonableness review entails the of `totality any variance of the circumstances, [g]uidelines

including range.'"

from

the

United States v. Pauley, 511 F.3d 468, 473 (4th Cir. If the sentence is

2007) (quoting Gall, 128 S. Ct. at 597). 4

within

the

guidelines

range,

we

apply

a

presumption

of

reasonableness.

United States v. Allen, 491 F.3d 178, 193 (4th

Cir. 2007); see Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding presumption of reasonableness for

within-guidelines sentence). We have thoroughly reviewed the record and find that the sentence is both procedurally and substantively reasonable. The district court properly calculated the advisory guidelines range, considered the 18 U.S.C. § 3553(a) factors, and provided a comprehensive explanation of its chosen sentence. See United In of

States v. Carter, 564 F.3d 325, 328-30 (4th Cir. 2009). addition, substantive sentence. Parham has failed we to rebut to the his presumption

reasonableness

accord

within-guidelines

We have examined the entire record in accordance with the requirements of Anders and have found no meritorious issues for appeal. We therefore affirm the judgment and deny counsel's This court requires that counsel inform

motion to withdraw.

Parham, in writing, of the right to petition the Supreme Court of the United States for further review. that a petition be filed, but counsel If Parham requests that such a

believes

petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. must state that a copy thereof 5 was served Counsel's motion on Parham. 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

6