United States v. Leroyce White

Filing

PER CURIAM OPINION FILED - THE COURT: JAMES B. LOKEN, PASCO M. BOWMAN and DUANE BENTON (UNPUBLISHED); Granting [3863592-2] motion to withdraw as counsel filed by Mr. David A. Kelly. [3919374] [11-3248]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-3248
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United States of America,
Appellee,
v.
Leroyce J. White,
Appellant.

*
*
* Appeal from the United States
* District Court for the
* Western District of Missouri.
*
*
[UNPUBLISHED]
*
*
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Submitted: June 4, 2012
Filed: June 7, 2012
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Before LOKEN, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
Leroyce White appeals from the judgment entered by the District Court1 after
he pleaded guilty to being a felon in possession of ammunition, 18 U.S.C.
§§ 922(g)(1) and 924(e). The court sentenced White to 180 months in prison, the
statutory minimum under the Armed Career Criminal Act (ACCA), and a slight
downward variance from the applicable Guidelines imprisonment range of 188 to 235
months. In a subsequent 28 U.S.C. § 2255 motion, White successfully claimed that
his counsel was ineffective for failing to file a notice of appeal following his
1

The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.

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Date Filed: 06/07/2012 Entry ID: 3919374

conviction and unsuccessfully claimed that his counsel was ineffective for failing to
prepare for trial and thereby coercing his guilty plea. In this appeal, in a brief filed
under Anders v. California, 386 U.S. 738 (1967), counsel argues that White did not
have the predicate ACCA convictions, that his sentence was unreasonable, and that
the court erred in denying his second ineffective-assistance claim. In his pro se brief,
White additionally raises a double-jeopardy claim and argues that his plea was not
knowing and voluntary because no one explained the nature of the offense.
Following careful review, we conclude that White was properly sentenced
under the ACCA, based on his Missouri second-degree-assault conviction stemming
from shots being fired in the direction of law enforcement officers and his two drugsale convictions. See 18 U.S.C. § 924(e); United States v. Vinton, 631 F.3d 476,
484–85 (8th Cir.) (explaining that under the modified categorical approach, the
defendant’s conviction under Missouri’s second-degree-assault statute was a violent
felony for ACCA purposes), cert. denied, 132 S. Ct. 213 (2011); United States v.
Mason, 440 F.3d 1056, 1057–58 (8th Cir. 2006) (holding that multiple drug sales that
occurred over three weeks and resulted in ten Missouri convictions were all predicate
serious drug offenses for ACCA purposes). In addition, White’s sentence was not
unreasonable. See United States v. Woods, 670 F.3d 883, 889 (8th Cir. 2012)
(explaining how a district court may abuse its discretion such that it imposes an
unreasonable sentence). We also agree with the District Court that the plea transcript
does not support the claims that White’s plea was unknowing and involuntary or that
plea counsel was unprepared for trial and thus ineffective. See Blackledge v. Allison,
431 U.S. 63, 74 (1977) (“Solemn declarations in open court carry a strong
presumption of verity.”); Tinajero-Ortiz v. United States, 635 F.3d 1100, 1104 (8th
Cir.) (noting that a defendant could not show prejudice from ineffective assistance of
counsel when he had not shown that he would not have pleaded guilty but for
counsel’s deficient performance), cert. denied, 132 S. Ct. 315 (2011). We do not
consider White’s double-jeopardy argument, raised for the first time in this appeal.

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See United States v. Goodwin, 72 F.3d 88, 91 (8th Cir. 1995) (“Double jeopardy
claims may not be raised for the first time on appeal.”).
Finally, having reviewed the record under Penson v. Ohio, 448 U.S. 75, 80
(1988), we have found no nonfrivolous issues. Accordingly, the judgment is
affirmed, and counsel’s motion to withdraw is granted.
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Date Filed: 06/07/2012 Entry ID: 3919374