US v. Jeffrey Spark

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:11-cr-00073-RLV-DSC-31 Copies to all parties and the district court/agency. [999692743].. [15-4046]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4046

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFREY NATHAN SPARKS,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge. (5:11-cr-00073-RLV-DSC-31)

Submitted:

September 15, 2015

Decided:

November 4, 2015

Before WILKINSON, KING, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robert C. Carpenter, ADAMS, HENDON, CARSON, CROW & SAENGER,
P.A., Asheville, 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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jeffrey

Nathan

Sparks

pled

guilty

to

conspiracy

to

distribute, possess with intent to distribute, and manufacture a
controlled
(2012).

substance

in

violation

of

21

U.S.C.

The court imposed a 63-month sentence.

§

841(a)(1)

Sparks’ counsel

filed a brief in accordance with Anders v. California, 386 U.S.
738

(1967),

meritorious

stating
issues

that,
for

in

counsel’s

appeal,

but

view,

there

questioning

are

whether

no
the

district court denied Sparks the opportunity to allocute prior
to imposing sentence and whether Sparks was denied the effective
assistance of trial counsel.

Sparks was informed of his right

to file a pro se supplemental brief, but he has not done so.
For the reasons that follow, we affirm.
Based on Sparks’ stipulation as to the quantity of drugs
reasonably foreseeable to him and the evidence provided by law
enforcement agents, the district court determined that Sparks’
base offense level was 32.

The court appropriately increased

Sparks’ offense level for possession of a firearm in furtherance
of

the

After

offense
reducing

and

substantial

the

offense

risk

of

to

for

level

harm

human

life.

acceptance

of

responsibility, Sparks’ advisory Guidelines range was 168 to 210
months’ imprisonment.
and

an

advisory

The court departed downward to level 25

Guidelines

range

of

announced Sparks’ sentence as 63 months.
2

63

to

78

months,

and

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Only after imposing sentence did the district court ask
Sparks if he wished to say anything with regard to his sentence.
Sparks responded, expressing his appreciation to the court and
apologizing for his bad decisions.

On appeal, Sparks contends

that he was denied the opportunity to allocute prior to the
court’s imposition of sentence.
A defendant has a due process right to address the court
and provide a statement in mitigation of sentencing.

Fed. R.

Crim. P. 32(i)(4)(A)(ii); Green v. United States, 365 U.S. 301,
304 (1961); Ashe v. North Carolina, 586 F.2d 334, 336 (4th Cir.
1978).

Because he failed to object at sentencing, our review is

for plain error.

United States v. Muhammad, 478 F.3d 247, 248-

49 (4th Cir. 2007).
announcing

Sparks’

We find that the district court, by first
sentence

and

then

allowing

Sparks

opportunity to allocute, did not commit plain error.

the

See United

States v. Engle, 676 F.3d 405, 425 (4th Cir. 2012) (“‘[W]hen a
judge announces a sentence before hearing an allocution, it is
fair to assume that such a sentence is tentative and that the
judge will consider the defendant’s statements before imposing a
final sentence.’”) (quoting United States v. Burgos–Andujar, 275
F.3d 23, 30 (1st Cir. 2001)), petition for cert. filed (June 12,
2015); see also United States v. Boose, 403 F.3d 1016 (8th Cir.
2005)

(finding

no

denial

of

allocution

when

court

announced

tentative sentence before allowing defendant to allocute).
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Additionally, in light of the district court’s significant
downward departure, Sparks cannot show that he was prejudiced by
not allocuting prior to the imposition of sentence.

See United

States v. Lewis, 10 F.3d 1086, 1092 (4th Cir. 1993) (finding no
prejudice to defendant by the denial of the right to allocute
when there was no possibility of defendant receiving a lesser
sentence).
Sparks

also

contends

that

he

was

denied

the

effective

assistance of counsel with respect to his entry of a guilty
plea, counsel’s failure to object to and challenge sentencing
enhancements,
Sparks

and

should

counsel’s

testify

at

incorrect

sentencing.

advice
We

as

to

whether

decline

Sparks’ claims of ineffective assistance of counsel.

to

reach

Unless an

attorney’s ineffectiveness conclusively appears on the face of
the

record,

ineffective

assistance

addressed on direct appeal.
424, 435 (4th Cir. 2008).

claims

are

not

generally

United States v. Benton, 523 F.3d

Instead, such claims should be raised

in a motion brought pursuant to 28 U.S.C. § 2255 (2012), in
order to permit sufficient development of the record.

United

States

2010).

Because

v.

Baptiste,

there

is

596
no

F.3d

214,

conclusive

216

n.1

evidence

(4th
of

Cir.

ineffective

assistance of counsel on the face of the record, we conclude
that these claims should be raised, if at all, in a § 2255
motion.
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accordance

with

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Anders,

we

have

reviewed

the

entire

record in this case and have found no meritorious issues for
appeal.

We therefore affirm Sparks’ conviction and sentence.

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

If Sparks 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 Sparks.

We dispense with oral argument because

the facts and legal contentions are adequately presented in the
materials

before

this

court

and

argument

would

not

aid

the

decisional process.
AFFIRMED

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