Filed: Jan. 20, 2011
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4730 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. FERNANDO ALEXANDER SETTLES, Defendant – Appellant. No. 09-4752 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. WINSTON CHARLES MACK, Defendant - Appellant. Appeals from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:08-cr-00348-WDQ-4; 1:08-cr-00348-WDQ-3) Submitted: January 10, 2011 Decided: J
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4730 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. FERNANDO ALEXANDER SETTLES, Defendant – Appellant. No. 09-4752 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. WINSTON CHARLES MACK, Defendant - Appellant. Appeals from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:08-cr-00348-WDQ-4; 1:08-cr-00348-WDQ-3) Submitted: January 10, 2011 Decided: Ja..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4730
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FERNANDO ALEXANDER SETTLES,
Defendant – Appellant.
No. 09-4752
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WINSTON CHARLES MACK,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:08-cr-00348-WDQ-4; 1:08-cr-00348-WDQ-3)
Submitted: January 10, 2011 Decided: January 20, 2011
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Steven H. Levin, LEVIN & GALLAGHER LLC, Baltimore, Maryland;
Timothy J. Sullivan, Brett J. Cook, BRENNAN SULLIVAN & MCKENNA
LLP, Greenbelt, Maryland, for Appellants. Christopher John
Romano, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In March 2009, Fernando Alexander Settles, Winston
Charles Mack, and three other co-defendants were charged in a
five-count superseding indictment. Settles and Mack were each
charged with conspiracy to distribute 500 grams or more of
cocaine hydrochloride and 50 grams or more of cocaine base, in
violation of 21 U.S.C. § 846 (2006) (Count One). Settles was
also charged with possession with intent to distribute cocaine
hydrochloride, in violation of 21 U.S.C. § 841(a)(1) (2006)
(Count Three). The Government filed notice that Settles faced
an enhanced penalty pursuant to 21 U.S.C.A. §§ 841(b)(1)(A), 851
(West 1999 & Supp. 2010), based on a prior felony drug
conviction. Mack also faced a charge of possession with intent
to distribute marijuana and cocaine base, in violation of 21
U.S.C. § 841(a)(1) (Count Five). Settles and Mack pleaded not
guilty and were convicted following a jury trial. Settles was
sentenced to the 240-month mandatory statutory minimum and Mack
was sentenced to 136 months’ imprisonment, the middle of his
U.S. Sentencing Guidelines Manual (“USSG”) (2008) range.
Finding no reversible error, we affirm.
In this consolidated appeal, counsel for Settles and
counsel for Mack have filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), concluding that there are no
meritorious grounds for appeal, but asking us to review, first,
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whether Settles received ineffective assistance of counsel where
trial counsel failed to subpoena a witness; second, whether the
district court erred in imposing a mandatory minimum sentence
based on Settles’ prior convictions; and third, whether Mack’s
decision to release counsel at sentencing was voluntarily made.
At his sentencing hearing, Settles stated that he had
requested that trial counsel subpoena Gregory Sellers to testify
in his defense, but that counsel refused to do so. Claims of
ineffective assistance of counsel are generally not cognizable
on direct appeal, unless counsel’s “ineffectiveness conclusively
appears from the record.” United States v. Baldovinos, 434 F.3d
233, 239 (4th Cir. 2006). We conclude that ineffective
assistance does not appear conclusively on this record. In
order to allow for the adequate development of the record,
Settles must bring his claim in a 28 U.S.C.A. § 2255 (West Supp.
2010) motion. See United States v. Baptiste,
596 F.3d 214,
216-17 n.1 (4th Cir. 2010).
Turning to Settles’ sentence, we conclude that the
district court did not err in imposing the mandatory minimum
sentence pursuant to 21 U.S.C.A. § 841(b)(1)(A). Settles argues
that the prior conviction used to enhance his sentence was
improper because it occurred during the course of the conspiracy
charged in Count One. However, even if Settles’ conviction was
considered to be part of the charged conspiracy, the twenty-year
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mandatory minimum would still apply. “When a defendant is
convicted of a drug conspiracy under 21 U.S.C. § 846, prior
felony drug convictions that fall within the conspiracy period
may be used to enhance the defendant’s sentence if the
conspiracy continued after his earlier convictions were final.”
United States v. Smith, 451 F.3d 209, 224 (4th Cir. 2006).
Next, counsel asks this court to review whether Mack’s
release of counsel at sentencing was intelligently and
voluntarily made. We find that it was. We review the waiver of
the right to counsel by examining the record as a whole,
including “the complete profile of the defendant and the
circumstances of his decision.” United States v. Bush, 404 F.3d
263, 270 (4th Cir. 2005). “A refusal without good cause to
proceed with able appointed counsel is a voluntary waiver.”
United States v. Gallop,
838 F.2d 105, 109 (4th Cir. 1988)
(internal quotation marks omitted); see United States v.
McQueen,
445 F.3d 757, 760-61 (4th Cir. 2006) (“[i]t is not a
denial of the right to counsel to refuse to indulge the
defendant’s transparent attempts at manipulation by requesting
an attorney on the day of trial.”). Given that Mack’s decision
to relieve counsel was made at the sentencing hearing and based
on a meritless accusation against counsel, we conclude Mack’s
conduct constituted a refusal without good cause to proceed with
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able appointed counsel and his waiver of right to counsel was
therefore intelligently and voluntarily made.
We have thoroughly examined the pro se issues raised
by Settles and Mack, and find them without merit. In accordance
with Anders, we have thoroughly reviewed the entire record in
this case and have found no meritorious issues for appeal. We
therefore affirm both Settles’ and Mack’s convictions and
sentences. We deny Mack’s motion to substitute counsel.
This court requires that Settles’ and Mack’s counsel
each inform them, in writing, of the right to petition the
Supreme Court of the United States for further review. If
Settles or Mack 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 his client.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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