US v. Rodney Barne
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999751260-2] Originating case number: 3:10-cr-00032-NKM-1,3:13-cv-80601-NKM-RSB Copies to all parties and the district court/agency. [999859004]. Mailed to: Rodney Barnes. [15-6834]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6834
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RODNEY WAYNE BARNES, a/k/a C,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville.
Norman K. Moon,
Senior District Judge. (3:10-cr-00032-NKM-1; 3:13-cv-80601-NKMRSB)
Submitted:
October 28, 2015
Decided:
June 20, 2016
Before WILKINSON, KING, and DIAZ, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Rodney Wayne Barnes, Appellant Pro Se.
Heather Lynn Carlton,
Ronald Mitchell Huber, Assistant United States Attorneys,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Rodney Wayne Barnes seeks to appeal the district court’s
orders denying relief on his 28 U.S.C. § 2255 (2012) motion and
denying his motion for reconsideration.
This Court granted a
certificate of appealability on the issue of whether Barnes’
trial counsel performed deficiently with regard to his advice
pertaining to the potential for a second 21 U.S.C. § 851 (2012)
enhancement.
For
the
reasons
that
follow,
we
conclude
that
Barnes failed to show that counsel’s performance was deficient.
In October 2010, a federal grand jury returned a 5-count
superseding indictment charging Barnes, and 7 other defendants,
with conspiracy to possess with intent to distribute 50 grams or
more of crack cocaine, 100 grams of heroin, and 500 grams of
powder
cocaine,
(b)(1)(A),
21
in
U.S.C.
violation
§ 846
of
(2012)
21
U.S.C.
(Count
1);
§§ 841(a)(1),
conspiracy
to
commit money laundering, in violation of 18 U.S.C. § 1956(h)
(2012) (Count 2); two counts of distribution of crack cocaine,
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012) (Count 3
and 4); and aiding and abetting another in the distribution of
crack
cocaine,
in
violation
of
18
U.S.C.
U.S.C. § 841(a)(1), (b)(1)(C) (Count 5).
§ 2
(2012)
and
21
The Government filed
notice, pursuant to 21 U.S.C. § 851, of its intent to seek an
enhanced statutory sentencing range due to Barnes’ prior felony
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drug conviction, specifically his 2001 Virginia conviction for
distribution of a controlled substance.
A
defendant
convicted
of
a
drug
trafficking
offense
is
subject to an enhanced statutory sentencing range of 20 years to
life if his instant conviction occurs “after a prior conviction
for
a
felony
drug
offense
has
become
final”
or
a
mandatory
sentence of life imprisonment if his conviction occurs “after
two or more prior convictions for a felony drug offense have
become final.”
21 U.S.C. § 841(b)(1)(A).
A “[f]elony drug
offense” is defined under 21 U.S.C. § 802(44) (2012) as “an
offense that is punishable by imprisonment for more than one
year under any law . . . that prohibits or restricts conduct
relating to narcotic drugs, marihuana [sic], anabolic steroids,
or depressant or stimulant drugs.”
Barnes contends that counsel
erroneously advised him that he was eligible for more than one
§ 851 enhancement.
To prove a claim of ineffective assistance of counsel, a
“defendant
must
show
[(1)]
that
counsel’s
performance
was
deficient,” and (2) “that the deficient performance prejudiced
the
defense.”
(1984).
a
Strickland
v.
Washington,
466
U.S.
668,
687
In the context of a conviction following a guilty plea,
defendant
can
show
prejudice
only
by
demonstrating
“‘a
reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to
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trial.’”
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Missouri
v.
Frye,
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132
S.
Ct.
1399,
1409
(2012)
(quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
Barnes’
plea
agreement
included
a
provision
confirming
Barnes’ understanding that the Government intended to seek a
§ 851 sentence enhancement based on his 2001 Virginia conviction
for
possession
with
intent
to
distribute
cocaine.
The
plea
agreement further provided that, if Barnes complied with his
obligations under the plea agreement, “the Government will agree
not to seek additional enhancement of [Barnes’] penalty range,
pursuant
to
21
U.S.C.
§ 851,
by
reason
of
any
other
prior
convictions for felony drug offenses which [Barnes] may have,
other than [the 2001 Virginia conviction for possession with
intent to distribute cocaine].”
During the Fed. R. Crim. P. 11 hearing, defense counsel
stated
that,
although
Barnes
stipulated
to
one
§ 851
enhancement, he benefited from the plea agreement because the
Government could have, but agreed not to, file more than one
§ 851
enhancement,
mandatory
life
which
sentence.
would
After
have
the
subjected
court
Barnes
accepted
to
a
Barnes’
guilty plea, the Assistant United States Attorney stated for the
record that the Government did not think that a second § 851
enhancement would have been possible.
everyone understand that?
it.”
The court asked, “Does
It doesn’t change anything, I take
Neither Barnes nor his defense counsel answered.
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Barnes
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asserts
that
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counsel
was
ineffective
for
representing that the Government could have pursued a second
§ 851 enhancement and that he was prejudiced because he pled
guilty based on this representation.
client was
Barnes’
eligible
May
2000
conviction,
for
a
second
Maryland
which
imprisonment.
professional
for
We
judgment
Counsel concluded that his
§ 851
felonious
he
was
possession
sentenced
accord
defense
.
a
.
.
enhancement
heroin
five
to
measure
on
of
years’
counsel’s
heavy
based
“reasonable
of
deference,”
Strickland, 466 U.S. at 690-91, and hold that Barnes has failed
to show that his attorney’s performance was deficient.
We
therefore
affirm
the
district
court’s
orders
denying
relief on this ineffective assistance claim and denying Barnes’
motion for reconsideration of this issue.
We deny a certificate
of appealability and dismiss the appeal as to all other claims.
Barnes’
motion
for
dispense
with
oral
contentions
are
appointment
argument
adequately
of
counsel
because
presented
in
the
the
is
denied.
facts
We
and
legal
materials
before
this court and argument would not aid the decisional process.
AFFIRMED IN PART; DISMISSED IN PART
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