Filed: Mar. 21, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4473 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MALIK JAMAL FOREMAN, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Malcolm J. Howard, Senior District Judge. (2:10-cr-00026-H-1) Submitted: January 31, 2013 Decided: March 21, 2013 Before MOTZ, GREGORY, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Joseph A. DiR
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4473 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MALIK JAMAL FOREMAN, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Malcolm J. Howard, Senior District Judge. (2:10-cr-00026-H-1) Submitted: January 31, 2013 Decided: March 21, 2013 Before MOTZ, GREGORY, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Joseph A. DiRu..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4473
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MALIK JAMAL FOREMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Malcolm J.
Howard, Senior District Judge. (2:10-cr-00026-H-1)
Submitted: January 31, 2013 Decided: March 21, 2013
Before MOTZ, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph A. DiRuzzo, III, FUERST ITTLEMAN DAVID & JOSEPH, PL,
Miami, Florida, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Malik Jamal Foreman pleaded guilty to distribution of
more than fifty grams of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) (2006). His attorney has filed an Anders v.
California, 386 U.S. 738 (1967), brief stating that there are no
meritorious issues for appeal, but questioning whether the
sentence was reasonable. Foreman filed a pro se supplemental
brief claiming counsel on his first direct appeal was
ineffective in filing a motion to remand for resentencing
instead of filing a merits brief. He also alleges ineffective
assistance of counsel at re-sentencing for failing to argue
sentencing errors from the first sentencing, including drug
amount that was not corroborated and the application of 21
U.S.C. § 851 (2006) to his sentence. The Government has not
filed a brief. We affirm.
Foreman’s first appeal was remanded by this court and
the sentence vacated for consideration of whether the Fair
Sentencing Act (FSA) should be retroactively applicable to
Foreman’s sentence. On remand, the district court applied the
FSA retroactively, and, applying the sentencing enhancements
under 21 U.S.C. §§ 841, 851 (2006), found the Sentencing
Guidelines range to be 121-151 months. After hearing
recommendations from the parties, reviewing the 18 U.S.C.
§ 3553(a) (2006) factors, and discussing Foreman’s criminal
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history, the court imposed a 132-month sentence. The court
found that a mid-range sentence “capture[d] the aggravating and
the mitigating sentencing factors.”
Although he offers no specific claims of error,
counsel questions whether Foreman’s sentence is procedurally and
substantively reasonable. This court reviews a sentence under a
deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). The first step in this review
requires the court to inspect the sentence for procedural
reasonableness by ensuring that the district court committed no
significant procedural errors, such as improperly calculating
the Guidelines range, failing to consider the 18 U.S.C.
§ 3553(a) factors, or failing to adequately explain the
sentence. See United States v. Boulware,
604 F.3d 832, 837-38
(4th Cir. 2010). A reviewing court then considers the
substantive reasonableness of the sentence imposed, taking into
account the totality of the circumstances. Gall, 552 U.S. at
51. If the sentence is within the Guidelines range, this court
presumes on appeal that the sentence is reasonable. United
States v. Go,
517 F.3d 216, 218 (4th Cir. 2008); see Rita v.
United States,
551 U.S. 338, 346-56 (2007) (permitting appellate
presumption of reasonableness for within-Guidelines sentence).
Here, the district court properly calculated Foreman’s
Guidelines sentence and then imposed a sentence within the
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Guidelines range. Neither party objected to the Guidelines
range, and the court provided sufficient reasoning supporting
its decision. Specifically, the district court noted Foreman’s
criminal history and continued return to drug trafficking even
after serving a ten–year sentence. The district court imposed a
sentence at the middle of the Guidelines range of 132 months.
We conclude that the court set forth a sufficiently developed
rationale to support the sentence, and there was no procedural
error. Regarding the substantive reasonableness of Foreman’s
sentence, the district court’s imposition of a sentence within
the Guidelines range is presumptively reasonable and Foreman has
not rebutted that presumption.
We have reviewed the issues Foreman raised in his pro
se supplemental brief and conclude that they are without merit.
Foreman raised ineffective assistance of counsel of his first
appellate attorney because he filed a motion to remand for
re-sentencing in light of the FSA instead of raising sentencing
errors at the first sentencing. This claim is based on a
misunderstanding of the appellate and re-sentencing process.
Because this court vacated the sentence and remanded, the
sentencing process began anew.
Next, Foreman contends that he did not receive
effective assistance of counsel when counsel at re-sentencing
did not object to the drug quantity used to calculate his
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sentence or the application of the increased mandatory minimum
under § 851. Claims of ineffective assistance of counsel
generally are not cognizable on direct appeal. United States v.
King, 119 F.3d 290, 295 (4th Cir. 1997). Rather, to allow for
adequate development of the record, a defendant generally must
bring his claims in a 28 U.S.C.A. § 2255 (West Supp. 2012)
motion. Id.; United States v. Hoyle,
33 F.3d 415, 418 (4th Cir.
1994). However, ineffective assistance claims are cognizable on
direct appeal if the record conclusively establishes ineffective
assistance. United States v. Richardson,
195 F.3d 192, 198 (4th
Cir. 1999).
To demonstrate ineffective assistance, a defendant
must show that his “counsel’s representation fell below an
objective standard of reasonableness,” and that the error was
“prejudicial to the defense” such that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 688, 692, 694 (1984).
First, as to drug quantity, at the first sentencing
hearing counsel objected to the quantity attributed based on
uncorroborated testimony from one witness and videotape of one
controlled buy that Foreman participated in and was the subject
of the count to which he pled guilty. Our review of the record
confirms that the Government established the relevant drug
5
quantity by a preponderance of the evidence. We therefore
conclude that the district court’s assessment was not error and
either reviewed on the merits or as an ineffective assistance of
counsel claim, the claim fails.
Next, Foreman argues that he should not have been
subject to the § 851 enhancement because the prosecutor acted
arbitrarily in filing the information after Foreman refused to
plead guilty to the conspiracy count and the Government
subsequently dismissed the count before discovery was completed.
Presumption of prosecutorial vindictiveness is not warranted in
this case where there was no actual evidence of vindictiveness
and absent such a presumption of vindictiveness no due process
violation can be established. United States v. Goodwin, 457
U.S. 368, 380-84 (1982). The court therefore did not err in
denying this objection at the first sentencing hearing and
Foreman would be unable to demonstrate prejudice from the record
before the court on an ineffective assistance claim.
Finally, Foreman alleged that he did not have a
predicate conviction under § 851 after this court decided United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (holding that
consideration of hypothetical aggravating factors and criminal
history is inappropriate when determining whether prior offense
constitutes felony) and counsel was ineffective for failing to
raise this objection at the re-sentencing hearing. Simmons had
6
been pending on appeal during Foreman’s first sentencing. His
sentence was enhanced based on a 2000 conviction in New York
State for attempted criminal sale of a controlled
substance-third degree. Foreman received a sentence of six
months of custody-suspended and one year of probation.
Under New York law, criminal sale of a controlled
substance in the third degree is a class B felony. N.Y. Penal
Law § 220.39 (McKinney 2006). An attempt to commit a class B
felony is a class C felony. N.Y. Penal Law § 110.05 (McKinney
2006). A class C felony is punishable by a maximum of fifteen
years of imprisonment and a minimum of one year. N.Y. Penal Law
§§ 70.00, 70.70 (McKinney 2007).
At his initial sentencing, counsel objected to the
offense qualifying as a predicate felony because Foreman did not
receive an imprisonment term of a year or more. However,
Foreman’s attempt to sell a controlled substance was punishable
by one year or more of imprisonment, and thus was a qualifying
predicate for career offender sentencing. Although the penal
code permits a first time offender convicted of a class C felony
to receive as little as a parole supervision sentence, Foreman
could have received a sentence of up to fifteen years. See N.Y.
Penal Law §§ 70.00, 70.70. Therefore, even after Simmons,
Foreman’s conviction may qualify as a predicate offense. We
note, however, that the information in the PSR is very limited
7
about the conviction. Nonetheless, we conclude, that even if
the conviction no longer qualifies under § 851, there is no
indication in the record that the district court’s sentencing
decision was affected by the enhanced statutory minimum sentence
of 120 months. The lowest end of the Guidelines range exceeded
the statutory minimum and the court expressed its desire to
sentence Foreman in the mid-range, and subsequently did so.
Therefore, any procedural sentencing error would be harmless.
See United States v. Savillon-Matute, 636 F.3d 119, 123 (4th
Cir.), cert. denied, 132 S. Ct 454 (2011) (holding procedural
error is harmless where the court would have reached the same
result had the Guidelines issue been decided the other way and
the sentence imposed would be reasonable even if contested issue
decided in defendant’s favor). Therefore, on the record before
the Court, Foreman’s claims related to the § 851 enhanced
minimum fail both directly on the merits and as an ineffective
assistance claim.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Foreman’s conviction and sentence. This
court requires that counsel inform Foreman, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Foreman requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
8
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 Foreman.
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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