US v. Quincy McWaine

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:10-cr-00152-MOC-1. Copies to all parties and the district court. [999763810]. [15-4403]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4403

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
QUINCY DESHAUN MCWAINE,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:10-cr-00152-MOC-1)

Submitted:

January 29, 2016

Decided:

February 29, 2016

Before SHEDD, DIAZ, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Chiege O. Kalu Okwara, Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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:
Quincy Deshaun McWaine pled guilty to conspiracy to possess
with intent to distribute cocaine and cocaine base, in violation
of 21 U.S.C. §§ 841(b)(1)(A), 846 (2012).
sentenced

McWaine

minimum sentence.

to

120

months’

The district court

imprisonment,

the

statutory

Counsel has filed a brief pursuant to Anders v.

California,

386

U.S.

meritorious

grounds

738
for

(1967),
appeal

stating

but

that

questioning

there

are

whether

no
the

district court erred in accepting McWaine’s guilty plea, whether
the district court erred in failing to find that an entrapment
defense applied, whether McWaine’s sentence was procedurally and
substantively
ineffective.

reasonable,

and

whether

McWaine’s

counsel

was

Although notified of his right to do so, McWaine has

not filed a pro se brief.

After careful consideration of the

entire record, we affirm.
Prior to accepting a guilty plea, a court must conduct a plea
colloquy in which it informs the defendant of, and determines that
the defendant understands, the nature of the charge to which he is
pleading guilty, the maximum possible penalty he faces, and the
various rights he is relinquishing by pleading guilty.

Fed. R.

Crim. P. 11(b)(1); United States v. DeFusco, 949 F.2d 114, 116
(4th Cir. 1991).

The district court also must ensure that the

defendant’s plea is voluntary, supported by a sufficient factual
basis, and not the result of force, threats, or promises not
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contained in the plea agreement.

Fed. R. Crim. P. 11(b)(2)-(3);

DeFusco, 949 F.2d at 119-20.
Because McWaine did not move to withdraw his guilty plea in
the district court or otherwise preserve any allegation of Rule 11
error, we review the plea colloquy for plain error.
v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014).

United States

“To prevail on a

claim of plain error, [McWaine] must demonstrate not only that the
district court plainly erred, but also that this error affected
his substantial rights.”

Id. at 816.

In the guilty plea context,

a defendant “must demonstrate a reasonable probability that, but
for the error, he would not have pleaded guilty.”
quotation

marks

omitted).

We

conclude

that

Id. (internal

McWaine

has

not

established plain error in his Rule 11 hearing. The district court
correctly found McWaine’s plea knowing and voluntary.
Counsel also questions whether the district court erred in
failing to sua sponte dismiss the indictment based on the defense
of entrapment.

The record contains no indication that McWaine

raised entrapment in any manner before the district court. Because
entrapment is an affirmative defense, United States v. McLaurin,
764 F.3d 372, 379 (4th Cir. 2014), cert. denied, 135 S. Ct. 1842,
1843 (2015), McWaine’s failure to assert it in the district court
forecloses consideration on appeal.

Moreover, McWaine’s knowing

and voluntary plea “constitutes a waiver of all nonjurisdictional
defects,” including an unasserted defense.
3

United States v.

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Willis, 992 F.2d 489, 490 (4th Cir. 1993).

Accordingly, this

argument is without merit.
As

to

McWaine’s

reasonableness,
standard.”

sentence,

applying

“a

we

review

deferential

a

sentence

for

abuse-of-discretion

Gall v. United States, 552 U.S. 38, 41 (2007).

This

review entails appellate consideration of both the procedural and
substantive reasonableness of the sentence.

Id. at 51.

In

determining procedural reasonableness, we consider whether the
district

court

properly

calculated

the

defendant’s

advisory

Sentencing Guidelines range, gave the parties an opportunity to
argue

for

an

appropriate

sentence,

considered

the

18

U.S.C.

§ 3553(a) (2012) factors, and sufficiently explained the selected
sentence.

Gall, 552 U.S. at 49-51.

If there are no procedural

errors, we then consider the substantive reasonableness of a
sentence, evaluating “the totality of the circumstances.”
51.

Id. at

A sentence is presumptively reasonable if it is within the

Guidelines range, and this “presumption can only be rebutted by
showing that the sentence is unreasonable when measured against
the 18 U.S.C. § 3553(a) factors.”

United States v. Louthian, 756

F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).
statutorily required sentence . . . is per se reasonable.”

“A

United

States v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008), abrogation
on other grounds recognized by United States v. Williams, 808 F.3d
238, 246 (4th Cir. 2015).
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In this case, the record establishes that McWaine’s sentence
is procedurally and substantively reasonable.

The district court

properly calculated McWaine’s offense level, criminal history, and
Guidelines range.

The court afforded the parties an adequate

opportunity to make arguments about the appropriate sentence.
Additionally, the court’s explanation for its sentence, in which
the court explicitly referenced § 3553(a), was individualized and
detailed.

The court thoroughly considered the § 3553(a) factors

before sentencing McWaine to the statutory minimum sentence.
Finally, counsel questions whether McWaine’s attorney was
ineffective.

Unless an attorney’s ineffectiveness conclusively

appears on the face of the record, ineffective assistance claims
are not generally addressed on direct appeal.
Benton, 523 F.3d 424, 435 (4th Cir. 2008).

United States v.

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 v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
Because there is no evidence of ineffective assistance of counsel
on the face of the record, these claims should be raised, if at
all, in a 28 U.S.C. § 2255 (2012) motion.
In accordance with Anders, we have reviewed the entire record
in this case and have found no meritorious issues for appeal.
therefore affirm McWaine’s conviction and sentence.

We

This court

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