US v. Christopher Hunter

Filing 920081219

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4523

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. CHRISTOPHER ALLEN HUNTER, 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-00251-LHT-DLH-2)

Submitted:

November 24, 2008

Decided:

December 19, 2008

Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Sue Genrich Berry, BOWEN AND BERRY, PLLC, Wilmington, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Christopher Allen Hunter entered a straight-up guilty plea to conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841, 846 (2006), and was sentenced to 200 months in prison. Counsel for Hunter has filed

a brief pursuant to Anders v. California, 386 U.S. 738 (1967), alleging that she has found no meritorious issues for appeal but asserting that Hunter did not receive effective assistance of counsel informed provided from of a his original trial counsel because Although a he was not was se

proposed of his

plea right

agreement. to file

Hunter pro

notice

supplemental

brief, he has not done so, and the Government has declined to file a responsive brief. Finding no error, we affirm the

district court's judgment. In accordance with Anders, we have thoroughly reviewed the record and have found no meritorious issues for appeal. We

find that the district court complied with the requirements of Fed. R. Crim. that P. his 11 when it accepted knowing Hunter's guilty plea, he

ensuring

plea

was

and

voluntary,

that

understood the rights he was giving up by pleading guilty and the sentence he faced, and that he committed the offense to which he was pleading guilty. See Fed. R. Crim. P. 11(b).

We also conclude that Hunter's 200-month sentence is reasonable. See United States v. Hughes, 401 F.3d 540, 546-47 2

(4th Cir. 2005).

We find that the district court correctly

calculated Hunter's Guidelines range and that it was reasonable for the district court to depart downward from that range. See

United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006) (holding that to determine an appropriate sentence, the district court should first calculate the appropriate Guidelines range and then determine "whether a departure is appropriate based on the Guidelines Manual or relevant case law"); United States

v. Davenport, 445 F.3d 366, 370-71 (4th Cir. 2006) ("When we review a sentence outside the advisory guideline range--whether as a product of a departure or a variance--we consider both whether the district court acted reasonably with respect to its decision to impose such a sentence and with respect to the

extent of the divergence from the guideline range.").

Because

the district court considered the 18 U.S.C. § 3553(a) (2006) factors and sentenced Hunter to a sentence in the middle of the departed Guidelines range, we find Hunter's sentence to be

reasonable. Although assistance proposed of Hunter contends he he was was never denied effective with a a

counsel

because that

presented in

plea

agreement

would

have

resulted

lower

sentencing guidelines range, see United States v. Blaylock, 20 F.3d 1458, 1465-66 (9th Cir. 1994) (failing to inform defendant of plea offer was unreasonable assistance), because it does not 3

"conclusively

appear

on

the

record"

that

Hunter

was

denied

effective assistance, this claim should be asserted by Hunter in a post-conviction motion under 28 U.S.C. § 2255 (2000) rather than on direct appeal. F.3d 192, 198 (4th See United States v. Richardson, 195 Cir. 1999) ("A claim of ineffective

assistance of counsel should be raised by a habeas corpus motion under 28 U.S.C. § 2255 in the district court and not on direct appeal.") omitted). (internal During quotation the plea marks, colloquy, brackets Hunter and citation the

informed

district court that he discussed possible defenses with trial counsel and that he was entirely satisfied with his attorney's services. verity." United These declarations "carry a strong presumption of Blackledge v. Allison, 431 U.S. 63, 74 (1977); see v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991)

States

(holding that defendant's statement at Rule 11 hearing that he was neither coerced nor threatened was "strong evidence of the voluntariness of his plea"). Moreover, although the Government indicated at

sentencing that a plea agreement was sent to trial counsel prior to the Rule 11 hearing, a proposed plea agreement was never mentioned Government by the Government not produce at a the copy Rule of 11 the hearing, proposed the plea

could

agreement at sentencing, and it is unclear whether trial counsel ever received a plea agreement--assuming one existed--from the 4

Government. failure to

Without evidence from trial counsel regarding his present the proposed plea agreement to Hunter,

consideration of this issue is premature.

See DeFusco, 949 F.2d

at 120-21 ("[I]t would be unfair to adjudicate [an ineffective assistance record."). Accordingly, we affirm the district court's judgment. This court requires that counsel inform Hunter in writing of his right to petition the Supreme Court of the United States for further review. If Hunter requests that a petition be filed, claim] without any statement from counsel on the

but counsel believes that such a petition would be frivolous, then counsel may move this court for leave to withdraw from representation. Counsel's motion must state that a copy thereof We dispense with oral argument because

was served on Hunter.

the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the

decisional process. AFFIRMED

5