US v. Hassan Berry

Filing 920090501

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4496

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HASSAN SHABAZZ BERRY, a/k/a Dog, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:07-cr-00896-RBH-1)

Submitted:

March 27, 2009

Decided:

May 1, 2009

Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James P. Rogers, Assistant Federal Public Defender, Aileen P. Clare, Research and Writing Specialist, Columbia, South Carolina, for Appellant. Alfred William Walker Bethea, Jr., Assistant United States Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Hassan 168-month possession Shabazz Berry appeals his his 500 conviction guilty grams or plea more and to of

sentence, with

imposed to

following

intent

distribute

cocaine, in violation of 21 U.S.C. § 841(a), (b)(1)(B) (2006). On appeal, Berry's counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), concluding that there are no meritorious district issues for in appeal, denying but questioning motion whether to the

court

erred

Berry's

suppress

evidence, complied with Fed. R. Crim. P. 11 in accepting Berry's guilty plea, and imposed a reasonable sentence. filed a pro se supplemental brief. Berry has also

Finding no error, we affirm.

First, with respect to the district court's denial of Berry's motion to suppress evidence, Berry's voluntary plea of guilty waived his right to challenge antecedent,

nonjurisdictional errors. 258, 267 (1973). 1

See Tollett v. Henderson, 411 U.S.

Turning to Berry's guilty plea, in the absence of a motion to withdraw a guilty plea, we review the adequacy of the plea proceeding for plain error. F.3d 517, 525 (4th Cir. 2002).
1

United States v. Martinez, 277 A review of Berry's guilty plea

Berry's guilty plea did not reserve the right to appeal the denial of the motion to suppress. See Fed. R. Crim. P. 11(a)(2).

2

hearing reveals that the district court fully complied with the requirements of Rule 11. Berry's plea was knowingly,

voluntarily, and intelligently made, with full knowledge of its consequences. We therefore find that the district court did not

err in accepting Berry's guilty plea. Counsel also challenges the reasonableness of Berry's sentence. We review for abuse of discretion a district court's Gall v. United States, 128 S. Ct. 586,

imposition of sentence.

597 (2007); see also United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). We must first ensure that the district court

committed no procedural error, such as improperly calculating the guideline range, considering the guidelines to be mandatory, failing to consider the § 3553(a) factors, sentencing based on clearly erroneous facts, or failing to adequately explain the chosen sentence. Gall, 128 S. Ct. at 597.

In the absence of procedural errors, we consider the substantive reasonableness of the sentence, taking into account the totality of the circumstances, including any variance from the guideline range. Pauley, 511 F.3d at 473. While we may

presume a sentence within the guideline range to be reasonable, we may not presume Id. a sentence outside the range to be

unreasonable.

Moreover, we give deference to the district

court's decision that the § 3553(a) factors justify a variant sentence and to the extent of 3 that variance. Even if the

reviewing court would have imposed a different sentence, this fact alone is not sufficient to justify reversing the district court. Id. at 473-74. In imposing Berry's sentence, the district court

correctly calculated the guideline range and considered both the advisory nature of the guidelines and the § 3553(a) factors. The court provided appropriate reasoning for its decision to impose a variant sentence twenty months below the lowest

sentence in the guideline range. Berry's sentence is both

Accordingly, we conclude that and substantively

procedurally

reasonable. In his pro se supplemental brief, Berry reiterates

some of the issues presented by counsel.

He also contends that

the Government breached the plea agreement by failing to file a motion for substantial assistance, challenges his career

offender status, and alleges that his trial counsel rendered ineffective assistance. Our review of the record leads us to

conclude that these claims lack merit. 2

With respect to Berry's ineffective assistance of counsel claim, where, as here, the record does not conclusively demonstrate ineffective assistance, such claims should be raised in a 28 U.S.C.A. § 2255 (West Supp. 2008) motion rather than on direct appeal. See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).

2

4

In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm Berry's conviction and sentence.

This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client 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 We dispense with oral

a copy thereof was served on the client.

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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