US v. Tracey Dougla

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 0:11-cr-00520-CMC-2 Copies to all parties and the district court/agency. [998868425].. [11-5143]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-5143

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TRACEY DOUGLAS,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (0:11-cr-00520-CMC-2)

Submitted:

May 21, 2012

Decided:

June 5, 2012

Before DUNCAN, AGEE, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jeremy A. Thompson, LAW OFFICE OF JEREMY A. THOMPSON, LLC,
Columbia,
South
Carolina,
for
Appellant.
Julius
Ness
Richardson, Assistant United States Attorney, Columbia, South
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Unpublished opinions are not binding precedent in this circuit.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, Tracey
Douglas

pled

guilty

to

conspiracy

to

possess

with

intent

to

distribute 280 grams or more of cocaine base, in violation of 21
U.S.C. § 846 (2006).
prison.

He now appeals.

accordance
claiming

Douglas was sentenced to 240 months in

with

that

Anders

defense

His attorney has filed a brief in

v.

California,

counsel

was

368

U.S.

ineffective.

738

(1967),

Douglas

has

filed a pro se supplemental brief raising additional issues.

We

affirm.

I
Douglas contends that counsel was ineffective because
he allegedly did not advise Douglas that, in accordance with the
plea agreement, the United States would not move for a downward
departure
(2011).
are

not

under

U.S.

Sentencing

Guidelines

Manual

§ 5K1.1

Claims of ineffective assistance of counsel generally
cognizable

conclusively

on

establishes

direct

appeal

counsel’s

performance” and resulting prejudice.
523 F.3d 424, 435 (4th Cir 2008).

unless

“objectively

the

record

unreasonable

United States v. Benton,

Rather, to allow for adequate

development of the record, a defendant ordinarily should bring
his ineffective assistance claim in a 28 U.S.C.A. § 2255 (West
Supp. 2011) motion.

United States v. Baptiste, 596 F.3d 214,
2

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216 n.1 (4th Cir. 2010).

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After reviewing the record, especially

the transcript of the Fed. R. Crim. P. 11 hearing, we conclude
that ineffective assistance does not conclusively appear on the
record.

We

therefore

decline

to

address

the

merits

of

the

claim.

II
In his pro se brief, Douglas argues that his guilty
plea was unknowing because the district court did not comply
with the requirements of Rule 11.

More specifically, Douglas

maintains that the district court did not adequately ascertain
that he understood the constitutional rights he was waiving by
pleading guilty.
Because Douglas did not move in the district court to
withdraw his guilty plea, our review is for plain error.

See

United States v. Martinez, 277 F.3d 517, 525-26 (4th Cir. 2002).
We discern no such error in this case.

Having considered the

transcript of the Rule 11 hearing, we conclude that the court
ascertained

that

Douglas

understood

that he waived by pleading guilty.

the

various

trial

rights

Additionally, although the

court did not mention its obligation to consider the factors
under 18 U.S.C. § 3553(a) (2006) when imposing sentence, see
Fed. R. Crim. P. 11(b)(1)(M), the court otherwise fully complied
with the Rule.

The omission did not affect Douglas’ substantial
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rights, particularly in light of his receiving the statutory
minimum sentence of 240 months.

See 21 U.S.C. § 841(b)(1)(A)

(2006).

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

This

court requires that counsel inform Douglas, in writing, of his
right to petition the Supreme Court of the United States for
further review.

If Douglas requests that a petition be filed,

but counsel believes that such a petition would be frivolous,
counsel

may

move

representation.

in

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Douglas.
We dispense with oral argument because the facts and
legal
before

contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

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