Filed: Feb. 29, 2016
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4403 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. QUINCY DESHAUN MCWAINE, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:10-cr-00152-MOC-1) Submitted: January 29, 2016 Decided: February 29, 2016 Before SHEDD, DIAZ, and HARRIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Chiege O. Kalu
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4403 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. QUINCY DESHAUN MCWAINE, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:10-cr-00152-MOC-1) Submitted: January 29, 2016 Decided: February 29, 2016 Before SHEDD, DIAZ, and HARRIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Chiege O. Kalu O..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4403
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
QUINCY DESHAUN MCWAINE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:10-cr-00152-MOC-1)
Submitted: January 29, 2016 Decided: February 29, 2016
Before SHEDD, DIAZ, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Chiege O. Kalu Okwara, Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Quincy Deshaun McWaine pled guilty to conspiracy to possess
with intent to distribute cocaine and cocaine base, in violation
of 21 U.S.C. §§ 841(b)(1)(A), 846 (2012). The district court
sentenced McWaine to 120 months’ imprisonment, the statutory
minimum sentence. Counsel has filed a brief pursuant to Anders v.
California,
386 U.S. 738 (1967), stating that there are no
meritorious grounds for appeal but questioning whether the
district court erred in accepting McWaine’s guilty plea, whether
the district court erred in failing to find that an entrapment
defense applied, whether McWaine’s sentence was procedurally and
substantively reasonable, and whether McWaine’s counsel was
ineffective. Although notified of his right to do so, McWaine has
not filed a pro se brief. After careful consideration of the
entire record, we affirm.
Prior to accepting a guilty plea, a court must conduct a plea
colloquy in which it informs the defendant of, and determines that
the defendant understands, the nature of the charge to which he is
pleading guilty, the maximum possible penalty he faces, and the
various rights he is relinquishing by pleading guilty. Fed. R.
Crim. P. 11(b)(1); United States v. DeFusco,
949 F.2d 114, 116
(4th Cir. 1991). The district court also must ensure that the
defendant’s plea is voluntary, supported by a sufficient factual
basis, and not the result of force, threats, or promises not
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contained in the plea agreement. Fed. R. Crim. P. 11(b)(2)-(3);
DeFusco, 949 F.2d at 119-20.
Because McWaine did not move to withdraw his guilty plea in
the district court or otherwise preserve any allegation of Rule 11
error, we review the plea colloquy for plain error. United States
v. Sanya,
774 F.3d 812, 815 (4th Cir. 2014). “To prevail on a
claim of plain error, [McWaine] must demonstrate not only that the
district court plainly erred, but also that this error affected
his substantial rights.”
Id. at 816. In the guilty plea context,
a defendant “must demonstrate a reasonable probability that, but
for the error, he would not have pleaded guilty.”
Id. (internal
quotation marks omitted). We conclude that McWaine has not
established plain error in his Rule 11 hearing. The district court
correctly found McWaine’s plea knowing and voluntary.
Counsel also questions whether the district court erred in
failing to sua sponte dismiss the indictment based on the defense
of entrapment. The record contains no indication that McWaine
raised entrapment in any manner before the district court. Because
entrapment is an affirmative defense, United States v. McLaurin,
764 F.3d 372, 379 (4th Cir. 2014), cert. denied,
135 S. Ct. 1842,
1843 (2015), McWaine’s failure to assert it in the district court
forecloses consideration on appeal. Moreover, McWaine’s knowing
and voluntary plea “constitutes a waiver of all nonjurisdictional
defects,” including an unasserted defense. United States v.
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Willis,
992 F.2d 489, 490 (4th Cir. 1993). Accordingly, this
argument is without merit.
As to McWaine’s sentence, we review a sentence for
reasonableness, applying “a deferential abuse-of-discretion
standard.” Gall v. United States,
552 U.S. 38, 41 (2007). This
review entails appellate consideration of both the procedural and
substantive reasonableness of the sentence.
Id. at 51. In
determining procedural reasonableness, we consider whether the
district court properly calculated the defendant’s advisory
Sentencing Guidelines range, gave the parties an opportunity to
argue for an appropriate sentence, considered the 18 U.S.C.
§ 3553(a) (2012) factors, and sufficiently explained the selected
sentence.
Gall, 552 U.S. at 49-51. If there are no procedural
errors, we then consider the substantive reasonableness of a
sentence, evaluating “the totality of the circumstances.”
Id. at
51. A sentence is presumptively reasonable if it is within the
Guidelines range, and this “presumption can only be rebutted by
showing that the sentence is unreasonable when measured against
the 18 U.S.C. § 3553(a) factors.” United States v. Louthian,
756
F.3d 295, 306 (4th Cir.), cert. denied,
135 S. Ct. 421 (2014). “A
statutorily required sentence . . . is per se reasonable.” United
States v. Farrior,
535 F.3d 210, 224 (4th Cir. 2008), abrogation
on other grounds recognized by United States v. Williams,
808 F.3d
238, 246 (4th Cir. 2015).
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In this case, the record establishes that McWaine’s sentence
is procedurally and substantively reasonable. The district court
properly calculated McWaine’s offense level, criminal history, and
Guidelines range. The court afforded the parties an adequate
opportunity to make arguments about the appropriate sentence.
Additionally, the court’s explanation for its sentence, in which
the court explicitly referenced § 3553(a), was individualized and
detailed. The court thoroughly considered the § 3553(a) factors
before sentencing McWaine to the statutory minimum sentence.
Finally, counsel questions whether McWaine’s attorney was
ineffective. Unless an attorney’s ineffectiveness conclusively
appears on the face of the record, ineffective assistance claims
are not generally addressed on direct appeal. United States v.
Benton,
523 F.3d 424, 435 (4th Cir. 2008). Instead, such claims
should be raised in a motion brought pursuant to 28 U.S.C. § 2255
(2012), in order to permit sufficient development of the record.
United States v. Baptiste,
596 F.3d 214, 216 n.1 (4th Cir. 2010).
Because there is no evidence of ineffective assistance of counsel
on the face of the record, these claims should be raised, if at
all, in a 28 U.S.C. § 2255 (2012) motion.
In accordance with Anders, we have reviewed the entire record
in this case and have found no meritorious issues for appeal. We
therefore affirm McWaine’s conviction and sentence. This court
requires that counsel inform McWaine, in writing, of the right to
5
petition the Supreme Court of the United States for further review.
If McWaine 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 McWaine.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
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