US v. Maurice Bailey

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:12-cr-00145-NCT-1 Copies to all parties and the district court/agency. [999124051].. [12-5019]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-5019

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MAURICE SYLVESTER BAILEY, a/k/a “Big Mo”,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00145-NCT-1)

Submitted:

May 24, 2013

Decided:

June 6, 2013

Before DAVIS, KEENAN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Dhamian A. Blue, BLUE STEPHENS & FELLERS LLP, Raleigh, North
Carolina, for Appellant. Andrew Charles Cochran, OFFICE OF THE
UNITED
STATES
ATTORNEY,
Greensboro,
North
Carolina,
for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Maurice Sylvester Bailey pleaded guilty, pursuant to a
written plea agreement, to possession with intent to distribute
35.2

grams

of

§ 841(a)(1),
Bailey

to

cocaine

(b)(1)(B)

108

base,

in

(2006).

months’

violation

The

of

district

court

imprisonment.

On

appeal,

21

U.S.C.

sentenced

counsel

has

filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967),

certifying

that

there

are

no

meritorious

issues

for

appeal, but questioning the validity of Bailey’s guilty plea,
whether the search of Bailey’s residence violated the Fourth
Amendment, whether the district court abused its discretion by
imposing an unreasonable sentence, and whether Bailey’s trial
counsel was ineffective.

Bailey’s pro se supplemental brief

raises a number of Fourth, Fifth, and Sixth Amendment claims.
The Government declined to file a responsive brief.

Following a

careful review of the record, we affirm.
Because Bailey did not move in the district court to
withdraw his guilty plea, we review the Federal Rule of Criminal
Procedure

11

hearing

for

plain

error.

United

Martinez, 277 F.3d 517, 525 (4th Cir. 2002).

States

v.

To prevail under

this standard, Bailey must establish that an error occurred, was
plain, and affected his substantial rights.

United States v.

Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009).

Our review of

the

substantially

record

establishes

that

the
2

district

court

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complied

with

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Rule

11’s

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requirements,

ensuring

that

Bailey’s

plea was knowing and voluntary.
Counsel

also

questions

whether

Bailey’s

Fourth

Amendment rights were violated in the course of the search of
his residence.

Because Bailey entered an unconditional guilty

plea, this claim is waived.

“When a criminal defendant has

solemnly admitted in open court that he is in fact guilty of the
offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea.”
Tollett v. Henderson, 411 U.S. 258, 267 (1973).
challenge

on

nonjurisdictional

appeal

a

defense

unconditional guilty plea.

Fourth
and

Amendment

thus

is

The right to
issue

forfeited

is
by

a
an

Haring v. Prosise, 462 U.S. 306, 320

(1983).
We review Bailey’s sentence under a deferential abuseof-discretion standard.

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

(2007).

requires

This

review

consideration

of

both

the

procedural and substantive reasonableness of the sentence.

Id.;

United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).

After

determining whether the district court correctly calculated the
advisory

Guidelines

range,

we

must

decide

whether

the

court

considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed the
arguments presented by the parties, and sufficiently explained
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the selected sentence.

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Lynn, 592 F.3d at 575-76; United States

v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).
Once we have determined that the sentence is free of
procedural error, we consider the substantive reasonableness of
the

sentence,

“tak[ing]

circumstances.”

into

account

the

totality

of

the

Gall, 552 U.S. at 51; Lynn, 592 F.3d at 575.

If the sentence is within the appropriate Guidelines range, we
apply a presumption on appeal that the sentence is reasonable.
United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir.
2010).

Such a presumption is rebutted only if the defendant

demonstrates “that the sentence is unreasonable when measured
against the § 3553(a) factors.”
445

F.3d

375,

379

(4th

Cir.

United States v. Montes-Pineda,
2006)

(internal

quotation

marks

omitted).
The district court correctly calculated and considered
the advisory Guidelines range, and heard argument from counsel
and allocution from Bailey.

The court considered the § 3553(a)

factors and explained that the within-Guidelines sentence was
warranted in light of Bailey’s criminal history and continued
drug activity.
grounds

to

Further, neither counsel nor Bailey offers any

rebut

the

presumption

on

appeal

that

the

within-

Guidelines sentence of 108 months’ imprisonment is substantively
reasonable.

Accordingly, we conclude that the district court

did not abuse its discretion in sentencing Bailey.
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Counsel

also

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questions

whether

ineffective assistance of trial counsel.

Bailey

received

Claims of ineffective

assistance of counsel are generally not cognizable on direct
appeal,

unless

the

record

conclusively

establishes

counsel’s

“objectively unreasonable performance” and resulting prejudice.
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).
record

does

not

conclusively

rendered

ineffective

therefore

bring

his

establish

assistance

to

allegation

of

that

Bailey.

ineffective

trial

The

counsel

Bailey

must

assistance

of

counsel in a 28 U.S.C.A. § 2255 (West Supp. 2012) motion, should
he wish to pursue such a claim.

United States v. Baptiste, 596

F.3d 214, 216 n.1 (4th Cir. 2010).
Bailey’s pro se supplemental brief raises a number of
constitutional claims relating to the officers’ search of his
residence and statements he made to law enforcement officers.
However,

as

noted

above,

Bailey

waived

these

claims

upon

knowingly and voluntarily entering an unconditional guilty plea.
Finally, Bailey’s pro se supplemental brief challenges
the district court's reliance on facts outside of the indictment
to enhance his sentence based on drug quantity.
was

not

Bailey’s

sentenced

above

constitutional

the

applicable

challenge

finding is without merit.

to

the

Because Bailey

statutory
trial

maximum,

court’s

fact-

See United States v. Benkahla, 530

F.3d 300, 312 (4th Cir. 2008) (“Sentencing judges may find facts
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relevant to determining a Guidelines range by a preponderance of
the evidence, so long as that Guidelines sentence is treated as
advisory and falls within the statutory maximum authorized by
the jury’s verdict.”); United States v. Young, 609 F.3d 348, 357
(4th Cir. 2010) (sentencing court is not “bound by the evidence
presented

at

trial

when

determining

drug

quantity

or

other

relevant conduct”).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal.

We therefore affirm the district court’s judgment. This

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

If Bailey 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 thereof

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

contentions
this

Court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

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