US v. Terrance Backu

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00128-MR-DLH-3 Copies to all parties and the district court/agency. [998492109] [10-4340]

US v. Terrance Backu

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Date Filed: 12/28/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4340 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TERRANCE DEANDREW BACKUS, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:08-cr-00128-MR-DLH-3) Submitted: December 6, 2010 Decided: December 28, 2010

Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Samuel B. Winthrop, WINTHROP AND WINTHROP, Statesville, 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 Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Terrance sentence imposed Deandrew following Backus his guilty appeals plea to the 262-month to

conspiracy

possess with intent to distribute cocaine base, in violation of 21 U.S.C. § 846 (2006). On appeal, counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal but questioning whether the district court should have granted, sua sponte, a downward departure based on the significant overstatement of

Backus's criminal history category and whether the sentence was unreasonable because the district court failed to consider a downward variance based on a one-to-one ratio of crack-to-powder cocaine. ineffective Backus filed a of pro se supplemental counsel. brief alleging no

assistance

appellate

Finding

reversible error, we affirm. Counsel first argues that Backus's criminal history is overstated and that the district court erred in failing to grant a downward departure from criminal V. The history district category court VI has to the

criminal

history

category

discretion to depart downward one criminal history category for a career offender "[i]f reliable information indicates that the defendant's criminal history category substantially over-

represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes." 2

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U.S. Sentencing Guidelines Manual § 4A1.3(b)(1), (3)(A) (2008). However, "[w]e lack the authority to review a sentencing court's denial of a downward departure unless the court failed to

understand its authority to do so." 520 F.3d 367, 371 (4th Cir. 2008).

United States v. Brewer, Upon review, we conclude

that the record does not reveal that the district court failed to recognize its authority to depart. See United States v. Thus, Backus's

Draffin, 286 F.3d 606, 610 (D.C. Cir. 2002). claim is not reviewable on appeal. Counsel also argues that Backus's

sentence

was

unreasonable because the district court failed to consider a downward variance based on a one-to-one crack-to-powder ratio. Because Backus raises this argument for the first time on

appeal, we review for plain error. F.3d 328, 343 (4th Cir. 2008).

United States v. Branch, 537 To demonstrate plain error, a

defendant must show that: (1) there was an error; (2) the error was plain; and (3) the error affected his "substantial rights." United States v. Olano, 507 U.S. 725, 732 (1993). Under the advisory Guidelines, "district courts are

entitled to reject and vary categorically from the crack-cocaine Guidelines Guidelines." based on a policy disagreement with those

Spears v. United States, ___ U.S. ___, 129 S. Ct. The district court is not required to apply

840, 843-44 (2009).

a one-to-one ratio; Spears merely permits a district court to 3

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substitute

its

own

ratio

if

it

determines

the

sentencing

disparity is unwarranted.

Upon review, we conclude that the

district court did not err in failing to consider a downward variance disparity. In the pro se supplemental brief, Backus argues that appellate counsel was ineffective for failing to consult with him prior to filing the Anders brief and for failing to pursue certain "obvious" arguments. "A defendant can raise the claim based on the crack-to-powder cocaine sentencing

of ineffective assistance of counsel . . . on direct appeal if and only if it conclusively appears from the record that his counsel did not provide effective assistance . . . ." States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998). ineffective assistance the defendant must United To prove two

satisfy

requirements: (1) "that counsel's representation fell below an objective standard of reasonableness"; and (2) "that there is a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). We

conclude that the record does not conclusively demonstrate that counsel was ineffective; thus, we decline to consider Backus's ineffective assistance claim on direct appeal. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. 4

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We therefore affirm the district court's judgment.

This court

requires that counsel inform Backus, in writing, of his right to petition review. counsel counsel the If Supreme Backus Court of the that a United a States be be for further but

requests such this

petition would to

filed,

believes may move

that in

petition for

frivolous, from

court

leave

withdraw

representation.

Counsel's motion must state that a copy thereof We dispense with oral argument because

was served on Backus.

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

decisional process. AFFIRMED

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