Elawyers Elawyers
Ohio| Change

United States v. Carson, 04-4270 (2006)

Court: Court of Appeals for the Fourth Circuit Number: 04-4270 Visitors: 47
Filed: Feb. 03, 2006
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-4270 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus KENNETH ALLEN CARSON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (CR-02-813) Submitted: December 21, 2005 Decided: February 3, 2006 Before LUTTIG and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. J. Bradl
More
                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4270



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


KENNETH ALLEN CARSON,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(CR-02-813)


Submitted:   December 21, 2005            Decided:   February 3, 2006


Before LUTTIG and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


J. Bradley Bennett, SALVINI & BENNETT, L.L.C., Greenville, South
Carolina, for Appellant. Rose Mary Parham, Assistant United States
Attorney, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Kenneth Allen Carson appeals his convictions and 360-

month sentence for aiding and abetting armed bank robbery, in

violation of 18 U.S.C. §§ 2 and 2113(a), (d) (2000); use and carry

of a firearm during a crime of violence, in violation of 18 U.S.C.

§§ 2 and 924(c) (2000); and being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g), 924(e) (2000).

Carson’s attorney has filed a brief in accordance with Anders v.

California, 
386 U.S. 738
 (1967), challenging the district court’s

denial of Carson’s motion to withdraw his guilty plea and alleging

ineffective assistance of trial counsel, but stating that he finds

no   meritorious   grounds   for    appeal.   Carson   filed   a   pro   se

supplemental brief raising similar issues and challenging his

sentence under United States v. Booker, 
543 U.S. 220
 (2005).

Finding no reversible error, we affirm.

           In the Anders brief, counsel challenges the district

court’s denial of Carson’s motion to withdraw his guilty plea,

contending that although Carson conspired to commit robbery, he had

no knowledge that his co-conspirator had a firearm, and thus he

committed perjury in pleading guilty to the firearm charges.             We

review the district court’s denial of a motion to withdraw a guilty

plea for abuse of discretion.         United States v. Wilson, 
81 F.3d 1300
, 1305 (4th Cir. 1996).        “A defendant has no ‘absolute right’

to withdraw a guilty plea, and the district court has discretion to


                                    - 2 -
decide whether a ‘fair and just reason’ exists upon which to grant

a withdrawal.”     United States v. Bowman, 
348 F.3d 408
, 413 (4th

Cir. 2003), cert. denied, 
540 U.S. 1226
 (2004).             After careful

review of the record, we conclude the district court’s denial of

Carson’s motion was a proper exercise of discretion.          Id.; United

States v. Moore, 
931 F.2d 245
, 248 (4th Cir. 1991) (setting forth

six factors to be considered when a defendant moves to withdraw his

guilty plea).

          Carson      also   contends     his   trial   counsel     rendered

ineffective assistance by instructing him not to admit the truth in

court.   Claims of ineffective assistance of counsel are generally

not considered on direct appeal.            To succeed on a claim of

ineffective assistance of counsel on direct appeal, a defendant

must show conclusively from the face of the record that counsel

provided ineffective representation.        United States v. James, 
337 F.3d 387
, 391 (4th Cir. 2003), cert. denied, 
540 U.S. 1134
 (2004).

We conclude Carson has not made such a showing.

           Finally,    Carson   objects    to   the   calculation    of   his

criminal history points and the court’s finding that he was a armed

career criminal under Booker.      Because Carson did not raise this

issue in the district court, we review for plain error.           See United

States v. Hughes, 
401 F.3d 540
 (4th Cir. 2005).         We conclude    these

challenges to the calculation of Carson’s sentence fail.                  See

United States v. Thompson, 
421 F.3d 278
, 284-86 (4th Cir. 2005)


                                  - 3 -
(holding that prior convictions could not be severed from their

essential components, and these components include integral facts

such as the statutory violation and date of offense; therefore,

these facts were inherent to convictions not extraneous to them);

United States v. Cheek, 
415 F.3d 349
, 350 (4th Cir. 2005) (holding

that defendant’s Sixth Amendment right to trial by jury was not

violated by district court’s reliance on prior convictions for

sentencing under Armed Career Criminal Act).

            In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal.                      We

therefore affirm Carson’s convictions and sentence and deny his

motion to relieve counsel and appoint new counsel.                  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 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 the 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


                                      - 4 -

Source:  CourtListener

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer