US v. James Washington

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:12-cr-00187-1. Copies to all parties and the district court/agency [999913518]. [15-4809]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4809

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES T. WASHINGTON,
Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Senior
District Judge. (2:12-cr-00187-1)

Submitted:

August 2, 2016

Decided:

August 19, 2016

Before TRAXLER, AGEE, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John A. Carr, JOHN A. CARR ATTORNEY AT LAW, PLLC, Charleston, West
Virginia, for Appellant.
Monica D. Coleman, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
James T. Washington pled guilty pursuant to a written plea
agreement to one count of distribution of cocaine, in violation of
21 U.S.C. § 841(a)(1) (2012). The district court imposed a withinGuidelines sentence of 216 months.

In accordance with Anders v.

California, 386 U.S. 738 (1967), Washington’s counsel has filed a
brief certifying that there are no meritorious issues for appeal,
but questioning whether (1) it was incumbent on the Government to
file the 21 U.S.C. § 851 (2012) information before Washington
signed the plea agreement; (2) the district court plainly erred by
not inquiring about the basis for the § 851 information before
imposing

Washington’s

sentence;

and

(3)

provided ineffective assistance of counsel.

Washington’s

counsel

Washington has filed

a pro se supplemental brief expanding on the claims identified in
the

Anders

brief

and

asserting

that

his

plea

agreement

was

involuntary because it was coerced by the threat of a sentencing
enhancement under § 851.

We affirm Washington’s conviction and

sentence.
Washington has two claims concerning the § 851 information.
Because Washington did not object on these grounds below, we review
these claims for plain error.

See United States v. Sanya, 774

F.3d 812, 815 (4th Cir. 2014).

To establish plain error, an

appellant must show: (1) error; (2) that was plain; and (3) that

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affected his substantial rights.

Henderson v. United States, 133

S. Ct. 1121, 1126-27 (2013).
First, Washington suggests that the § 851 information may
have been untimely filed.

An information seeking a statutory

sentence enhancement based on a prior conviction must be filed
before entry of a guilty plea.
because

the

Government

21 U.S.C. § 851(a)(1).

filed

the

§ 851

information

Here,
before

Washington appeared in court to enter his plea, the Government
complied with this requirement and no error occurred.
Next, counsel suggests that the district court failed to
properly inquire into the basis for the § 851 information. Section
851 requires a district court, before imposing sentence, to inquire
whether the defendant affirms or denies the prior conviction cited
in

the

§ 851

information,

and

to

inform

defendant

that

any

challenge to the prior conviction must be made before sentencing.
Here, the district court did neither.

Nonetheless, we conclude

that Washington has not met the demanding plain error standard,
because he cannot show that that the district court’s omission
affected his substantial rights.
his

prior

federal

controlled

First, Washington acknowledged
substance

offense

during

his

sentencing allocution, and on appeal offers no meritorious basis
to

challenge

the

prior

conviction

cited

in

the

information.

Accordingly, we conclude that both these § 851-based claims fail.

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Turning to Washington’s ineffective assistance claim, “[i]t
is

well

established

that

a

defendant

may

raise

a

claim

of

ineffective assistance of counsel in the first instance on direct
appeal if and only if it conclusively appears from the record that
counsel did not provide effective assistance.”

United States v.

Galloway, 749 F.3d 238, 241 (4th Cir. 2014) (alterations and
internal

quotation

marks

omitted).

Absent

such

a

showing,

ineffective assistance 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.
214,

216

n.1

(4th

Cir.

United States v. Baptiste, 596 F.3d
2010).

Here,

the

record

does

not

conclusively show that counsel provided ineffective assistance;
thus, the claim is properly raised, if at all, through a § 2255
motion rather than on direct appeal.
In accordance with Anders, we have reviewed the entire record
in this case and have found no meritorious issues for appeal.
therefore

affirm

the

district

court’s

judgment.

This

We

court

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

If Washington requests that a petition be filed, but

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

may

move

representation.

in

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Washington.
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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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