United States v. Harris

Court Case Details
Court Case Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

U

S

A

,

NITED

TATES OF

MERICA

Plaintiff-Appellee,

v.

No. 01-4955

M

D

H

,

ELVIN

EWAYNE

ARRIS

Defendant-Appellant.

U

S

A

,

NITED

TATES OF

MERICA

Plaintiff-Appellee,

v.

No. 01-4981

R

R

B

,

ANDY

ICHARD

ROOKS

Defendant-Appellant.

Appeals from the United States District Court

for the Middle District of North Carolina, at Durham.

James A. Beaty, Jr., District Judge.

(CR-01-37)

Submitted: August 22, 2002

Decided: October 3, 2002

Before WILLIAMS, MICHAEL, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

Austine M. L. Hamilton, Durham, North Carolina; Lisa S. Costner,
LISA S. COSTNER, P.A., Winston-Salem, North Carolina, for

2

U

S

v. H

NITED

TATES

ARRIS

Appellants. Anna Mills Wagoner, United States Attorney, Sandra J.
Hairston, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

OPINION

PER CURIAM:

Melvin Dewayne Harris pleaded guilty to conspiring to sell cocaine

base, and distributing 54.4 grams of cocaine base, in violation of 21
U.S.C. §§ 841(a)(1), 846 (2000). Harris was sentenced to two concur-
rent terms of 320 months incarceration and ten years of supervised
release. Randy Richard Brooks pleaded guilty to distributing 54.3
grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2000).
Brooks was sentenced to 120 months incarceration and five years of
supervised release. Harris and Brooks have timely appealed their sen-
tences; their attorneys have each filed briefs in accordance with
Anders v. California, 386 U.S. 738 (1967), and Harris and Brooks
have also filed pro se supplemental briefs.

First, the attorneys for Harris and Brooks argue the district court

erred in determining their sentences by failing to grant downward
departures. There is no basis for concluding the district court was
unaware of its authority to grant either Appellant a downward depar-
ture, and consequently, this issue is not subject to appellate review.
United States v. Bailey, 975 F.2d 1028, 1035 (4th Cir. 1992); United
States v. Bayerle
, 898 F.2d 28, 31 (4th Cir. 1990).

Second, Harris argues in his pro se informal brief that the district

court erred in enhancing his offense level based on his leadership role
in the drug conspiracy, and that his counsel was ineffective for failing
to raise this challenge on appeal. These claims are meritless. Harris
provided drugs to five co-conspirators as part of an extensive conspir-

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v. H

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TATES

ARRIS

acy lasting over a decade, and was therefore subject to the four point
enhancement. U.S. Sentencing Guidelines Manual § 3B1.1(a) (2000).
Additionally, Harris’s challenges to his counsel’s assistance are not
conclusively established by the record, and must therefore be raised
under 28 U.S.C. § 2255 (2000). United States v. Richardson, 195 F.3d
192, 198 (4th Cir. 1999), cert. denied, 528 U.S. 1096 (2000); United
States v. King
, 119 F.3d 290, 295 (4th Cir. 1997).

Third, Brooks argues in his pro se informal brief that the district

court violated Fed. R. Crim. P. 32 by failing to ensure Brooks’s coun-
sel had discussed the Presentence Investigation Report with him, and
that his counsel was ineffective. These claims are meritless; Brooks
has not established a Fed. R. Crim. P. 32 violation, and his challenges
to his counsel’s assistance are not conclusively established by the
record, and must therefore be raised under 28 U.S.C. § 2255 (2000).
Richardson, 195 F.3d at 198 (4th Cir. 1999); King, 119 F.3d at 295.

Accordingly, we affirm the convictions and sentences of Harris and

Brooks. In accordance with Anders, we have reviewed the entire
record in this case and find no other meritorious issues for appeal.
This court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client 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. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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