Filed: Apr. 22, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4856 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALEXANDER ROLAND FRAZIER, JR., Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Sol Blatt, Jr., Senior District Judge. (2:09-cr-00906-SB-1) Submitted: April 7, 2011 Decided: April 22, 2011 Before DUNCAN, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. J. Robert Haley, A
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4856 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALEXANDER ROLAND FRAZIER, JR., Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Sol Blatt, Jr., Senior District Judge. (2:09-cr-00906-SB-1) Submitted: April 7, 2011 Decided: April 22, 2011 Before DUNCAN, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. J. Robert Haley, As..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4856
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEXANDER ROLAND FRAZIER, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Sol Blatt, Jr., Senior District
Judge. (2:09-cr-00906-SB-1)
Submitted: April 7, 2011 Decided: April 22, 2011
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Sean Kittrell, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alexander Roland Frazier, Jr., pleaded guilty to
possession of a firearm after having previously been convicted
of a crime punishable by a term of imprisonment exceeding one
year, in violation of 18 U.S.C. § 922(g)(1) (2006). The
district court sentenced Frazier to eighty-four months of
imprisonment, and he now appeals. His counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
questioning whether the district court complied with Fed. R.
Crim. P. 11 and whether the sentence was reasonable. Frazier
has filed a pro se supplemental brief raising a claim of
ineffective assistance of counsel. Finding no error, we affirm.
Counsel first questions whether the district court
complied with the requirements of Rule 11. Prior to accepting a
guilty plea, a trial court, through colloquy with the defendant,
must inform the defendant of, and determine that he understands,
the nature of the charges to which the plea is offered, any
mandatory minimum penalty, the maximum possible penalty he
faces, and the various rights he is relinquishing by pleading
guilty. Fed. R. Crim. P. 11(b). The court also must determine
whether there is a factual basis for the plea. Id.; United
States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). The
purpose of the Rule 11 colloquy is to ensure that the plea of
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guilty is entered into knowingly and voluntarily. See United
States v. Vonn, 535 U.S. 55, 58 (2002).
Because Frazier did not move in the district court to
withdraw his guilty plea, any error in the Rule 11 hearing is
reviewed for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). “To establish plain error, [Frazier]
must show that an error occurred, that the error was plain, and
that the error affected his substantial rights.” United
States v. Muhammad,
478 F.3d 247, 249 (4th Cir. 2007). Even if
Frazier satisfies these requirements, “correction of the error
remains within our discretion, which we should not exercise
. . . unless the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.”
Id.
(internal quotation marks and citation omitted). Our review of
the record reveals substantial compliance with Rule 11. We
therefore conclude that Frazier pleaded guilty knowingly and
voluntarily.
Counsel next questions whether the sentence is
reasonable. We review a sentence for reasonableness, applying
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007); see also United States v. Layton,
564 F.3d
330, 335 (4th Cir.), cert. denied,
130 S. Ct. 290 (2009). In so
doing, we first examine the sentence for “significant procedural
error,” including “failing to calculate (or improperly
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calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a)
[(2006)] factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.” Gall, 552 U.S. at 51. We then “‘consider the
substantive reasonableness of the sentence imposed.’” United
States v. Evans,
526 F.3d 155, 161 (4th Cir. 2008) (quoting
Gall, 552 U.S. at 51). If the sentence is within the Guidelines
range, we apply a presumption of reasonableness. United
States v. Allen,
491 F.3d 178, 193 (4th Cir. 2007); see Rita v.
United States,
551 U.S. 338, 346-59 (2007) (permitting
presumption of reasonableness for within-Guidelines sentence).
We have thoroughly reviewed the record and conclude
that the sentence is procedurally and substantively reasonable.
The district court properly calculated the advisory Guidelines
range, considered the § 3553(a) factors, responded to Frazier’s
arguments at sentencing, and thoroughly explained its chosen
sentence. See United States v. Carter, 564 F.3d 325, 330 (4th
Cir. 2009) (district court must conduct individualized
assessment based on the particular facts of each case, whether
sentence is above, below, or within the Guidelines range).
Moreover, Frazier cannot overcome the presumption of
reasonableness we accord his within-Guidelines sentence.
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In his pro se supplemental brief, Frazier argues that
his trial counsel was ineffective for failing to object to a
Guidelines enhancement despite Frazier’s request that counsel so
object. 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.” Strickland v. Washington, 466 U.S. 668, 687
(1984). With respect to the first prong, “the defendant must
show that counsel’s representation fell below an objective
standard of reasonableness.”
Id. at 688. In addition,
“[j]udicial scrutiny of counsel’s performance must be highly
deferential.”
Id. at 689. Under the second prong of the test
in the context of a conviction following a guilty plea, a
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 trial.”
Hill v. Lockhart,
474 U.S. 52, 59 (1985).
We will address a claim of ineffective assistance on
direct appeal only if the lawyer’s ineffectiveness conclusively
appears on the record. United States v. Baldovinos, 434 F.3d
233, 239 (4th Cir. 2006). Upon review, we conclude that
ineffective assistance does not conclusively appear on the face
of the record, and therefore we decline to address this claim on
direct appeal.
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We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform Frazier, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Frazier 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 Frazier. 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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