US v. Derek Richardson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:10-cr-00152-BO-1 Copies to all parties and the district court/agency. [998736753].. [11-4149]

Appeal: 11-4149

Document: 35

Date Filed: 12/06/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4149

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEREK RICHARDSON, a/k/a Weasel,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrance W. Boyle,
District Judge. (5:10-cr-00152-BO-1)

Submitted:

November 29, 2011

Before WILKINSON and
Senior Circuit Judge.

GREGORY,

Decided:

Circuit

December 6, 2011

Judges,

and

HAMILTON,

Affirmed by unpublished per curiam opinion.

Walter H. Paramore, III, WALTER H. PARAMORE, III, P.C.,
Jacksonville, North Carolina, for Appellant.
Jennifer P. MayParker,
Assistant
United
States
Attorney,
Raleigh,
North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In

accordance

with

a

written

plea

agreement,

Derek

Richardson pled guilty to possession with intent to distribute
five

grams

(2006).
now

or

more

of

cocaine

base,

21

U.S.C.

§ 841(a)(1)

Richardson was sentenced to 210 months in prison.

appeals.

His

attorney

has

filed

a

brief

He

pursuant

to

Anders v. California, 386 U.S. 738 (1967), raising one issue but
stating

that

Richardson

there

has

are

filed

additional issues.

no

a

pro

meritorious
se

issues

supplemental

for

appeal.

brief

raising

We affirm.

I
Richardson contends in his pro se brief that his plea
was involuntary because the court failed to advise him at the
Fed. R. Crim. P. 11 hearing of the applicability of the Fair
Sentencing

Act

of

2010

(the

FSA).

Richardson

committed

the

offense on January 18, 2009, when the penalty for his offense
was

five

to

forty

years

in

prison.

The

FSA,

which

became

effective on August 3, 2010, lowered the penalty to “not more
than

twenty

years.”

21

U.S.C.A.

§ 841(b)(1)(C)

(West

Supp.

2011).

Richardson believes that the court’s failure to inform

him

the

of

statutory

amendment

at

the

proceeding rendered his plea involuntary.

2

August

16,

2010

plea

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Because Richardson did not move in the district court
to withdraw his plea, we review the Rule 11 hearing for plain
error.

See United States v. Martinez, 277 F.3d 517, 525-26 (4th

Cir. 2002).

After carefully reviewing the transcript of the

Rule 11 hearing, we discern no such error.

We note that the

district court correctly advised Richardson that he was subject
to a term of imprisonment of five to forty years.

Under the

Savings Statute, 1 U.S.C. § 109 (2006), a defendant generally is
not entitled to “application of ameliorative criminal sentencing
laws repealing [or amending] harsher ones in force at the time
of the commission of the crime.”

See United States v. Bullard,

645 F.3d 237, 248 (4th Cir. 2011).

Thus, Richardson’s plea was

not rendered involuntary by the failure of the district court to
advise him about the FSA.
Richardson also argues that his plea was involuntary
because the district court did not inquire about his claimed
attention deficit hyperactivity disorder (ADHD) or the impact of
his having only an eighth grade education on the voluntary and
knowing nature of his plea.

Richardson did not mention at the

hearing that he suffers from ADHD.
substantially

complied

with

Rule

Further, the district court
11,

represented by counsel at the hearing.

and

Richardson

was

We conclude that he has

not presented “credible evidence that his plea was not knowing

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or otherwise involuntary.”

Page: 4 of 6

See United States v. Ubakanma, 215

F.3d 421, 424 (4th Cir. 2000).

II
Both counsel in the Anders brief and Richardson in his
pro se brief contend that the 210-month sentence is unreasonable
because Richardson did not receive the benefit of the FSA.
review

a

sentence

for

discretion standard.
(2007).

applying

an

abuse-of-

Gall v. United States, 552 U.S. 38, 51
both

the

procedural and substantive reasonableness of the sentence.

Id.

We

first

This

reasonableness,

We

review

determine

requires

whether

consideration

the

district

of

court

correctly

calculated the defendant’s advisory Guidelines range, considered
the applicable 18 U.S.C.A. § 3553(a) (West Supp. 2011) factors,
analyzed

the

arguments

presented

by

the

sufficiently explained the selected sentence.
Lynn, 592 F.3d 572, 575-76 (4th Cir. 2010).
free

of

procedural

error,

we

reasonableness of the sentence.

then

parties,

and

United States v.
If the sentence is

review

the

substantive

Id.

Because Richardson did not raise his contention in the
district court, our review is for plain error.

See id. at 577.

Even if the FSA applies retroactively to a defendant, such as
Richardson, whose offense occurred prior to the effective date
of the FSA, but who was sentenced after that date, Richardson
4

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cannot establish plain error: he was sentenced to 210 months in
prison — within the statutory range established by the FSA; his
advisory

Guidelines

range

under

both

pre-FSA

and

post-FSA

Guidelines is 210-262 months; and he was sentenced at the lowest
point of that range.
We

conclude

procedurally

nor

that

the

substantively

210-month

sentence

unreasonable.

The

is

neither

sentence,

which falls within the properly calculated Guidelines range, is
presumptively reasonable, see United States v. Go, 517 F.3d 216,
218

(4th

Cir.

2008),

and

Richardson

has

not

rebutted

this

presumption.

III
Finally, Richardson claims in his pro se brief that
his attorney was ineffective.

To allow for adequate development

of the record, a defendant ordinarily must raise a claim of
ineffective assistance of counsel in a 28 U.S.C.A. § 2255 (West
Supp. 2011) motion unless ineffectiveness conclusively appears
on the face of the record.

See United States v. Richardson, 195

F.3d 192, 198 (4th Cir. 1999).

No such ineffectiveness appears

on the record.

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IV
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none.

We therefore

affirm.

This court requires that counsel inform his client, in

writing,

of

his

right

to

petition

United States for further review.

the

Supreme

Court

of

the

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 a copy was served on the client.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

We dispense with

legal
before

contentions
the

court

are
and

argument would not aid the decisional process.
AFFIRMED

6