Filed: Mar. 18, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4075 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TAIWAN JERMAINE SMITH, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Terrence W. Boyle, District Judge. (2:13-cr-00006-BO-1) Submitted: February 25, 2015 Decided: March 18, 2015 Before KEENAN and FLOYD, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4075 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TAIWAN JERMAINE SMITH, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Terrence W. Boyle, District Judge. (2:13-cr-00006-BO-1) Submitted: February 25, 2015 Decided: March 18, 2015 Before KEENAN and FLOYD, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4075
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TAIWAN JERMAINE SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W.
Boyle, District Judge. (2:13-cr-00006-BO-1)
Submitted: February 25, 2015 Decided: March 18, 2015
Before KEENAN and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Peter M. Wood, LAW OFFICE OF PETER WOOD, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Taiwan Smith appeals his sentence following a guilty plea
to being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1) (2012). Smith’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that he found no meritorious grounds for appeal but questioning
whether Smith’s plea was knowing and voluntary, Smith received
the effective assistance of counsel, and Smith’s sentence was
substantively reasonable. Smith filed a pro se supplemental
brief arguing that his sentence was procedurally unreasonable
because he did not plead guilty to a felony under N.C. Gen.
Stat. § 20-141.5 (2013), 1 and did not qualify for sentencing
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)
(2012).
After our initial review pursuant to Anders, we directed
the parties to file supplemental briefs regarding whether the
district court adequately addressed Smith’s argument that he did
not qualify for sentencing under ACCA. In the supplemental
brief, Smith’s counsel argues that the district court erred by
1
Smith notes that the presentence report referred to the
offense as “Fleeing to Elude Arrest,” but that the statute under
which he was convicted is entitled, “Speeding to elude arrest;
seizure and sale of vehicles.” See N.C. Gen. Stat. § 20-141.5.
However, offenses under § 20-141.5 are sometimes referred to as
“fleeing to elude arrest.” See, e.g., State v. Mulder, 755
S.E.2d 98, 106 (N.C. Ct. App. 2014).
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relying on the information in the presentence report and failing
to make findings regarding whether Smith had been convicted of a
felony violation of § 20-141.5. The Government responds that
the district court’s summary adoption of the factual allegations
of the presentence report was proper because Smith had provided
no evidence that those facts were inaccurate, and alternatively
argues that any error is harmless. Having carefully reviewed
the record in light of the parties’ supplemental briefs, we
affirm.
We first address Smith’s argument questioning the
sufficiency of the plea colloquy but points to no specific
error. Because Smith did not move to withdraw his plea, we
review his Rule 11 hearing for plain error, United States v.
Sanya, 774 F.3d 812, 815 (4th Cir. 2014), and will reverse only
if Smith “show[s] a reasonable probability that, but for error,
he would not have entered the plea,” United States v. Davila,
133 S. Ct. 2139, 2147 (2013) (internal quotation marks omitted).
Although the district court failed to fully comply with several
requirements of Rule 11, see Fed. R. Crim. P. 11(b)(1)(A), (D),
(H), (J)-(M), (O), 11(b)(2), 11(c)(3)(B), most of these
omissions were ameliorated by the information provided in
Smith’s plea agreement, and there is no indication that Smith
would not have entered his guilty plea had the district court
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more fully complied with Rule 11. Accordingly, we affirm
Smith’s conviction.
Smith next argues that his sentence is procedurally
unreasonable because the district court erred in concluding,
based on inadequate information in the PSR, that his conviction
under § 20-141.5 was a violent felony for purposes of ACCA.
A violation of § 20-141.5 is a violent felony for purposes
of the ACCA if it is punishable by more than one year of
imprisonment. 2 See United States v. Roseboro, 551 F.3d 226, 236,
238 n.5, 239 (4th Cir. 2009) (noting that felony conviction
under § 20-141.5 would be violent felony), abrogated on other
grounds by United States v. Rivers,
595 F.3d 558 (4th Cir.
2010). Whether a violation of § 20-141.5 is punishable by more
than one year of imprisonment depends on whether certain factors
listed in that statute are present, as well as the defendant’s
prior record and the applicability of an aggravated or mitigated
sentencing range. See N.C. Gen. Stat. §§ 15A-1340.17, 15A-
1340.23, 20-141.5(a), (b) (2013); see also United States v.
Valdovinos,
760 F.3d 322, 326 (4th Cir. 2014) (discussing North
Carolina’s sentencing scheme).
2
Smith contends in his pro se supplemental brief that his
offense was not a violent offense because it did not involve a
motor vehicle. After reviewing the record, we reject his
contention.
4
Regardless whether the district court erred in determining
that Smith’s prior crime was a violent felony based only on the
information in the PSR, we conclude that any such he error is
harmless. The Government has submitted certain state-court
records confirming that Smith’s § 20-141.5 violation was a
felony. See, e.g., Lolavar v. de Santibanes, 430 F.3d 221, 224
n.2 (4th Cir. 2005) (taking judicial notice of state-court
records). Moreover, Smith does not dispute the presentence
report’s finding that he received a suspended sentence of 11-14
months’ imprisonment for this offense. Because the record
clearly indicates that Smith’s § 20-141.5 violation was a felony
under the ACCA, Smith cannot demonstrate procedural error.
Turning our attention to substantive reasonableness, we
presume on appeal that a sentence within a properly calculated
advisory Guidelines range is reasonable. United States v.
Allen, 491 F.3d 178, 193 (4th Cir. 2007); see Rita v. United
States,
551 U.S. 338, 346-56 (2007) (upholding appellate
presumption of reasonableness for within-Guidelines sentence).
Smith has failed to rebut this presumption. Accordingly, we
conclude that Smith’s sentence is substantively reasonable.
We decline to reach Smith’s claim that counsel 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.
5
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 the record does not conclusively establish
ineffective assistance of counsel, we conclude that this claim
should be raised, if at all, in a § 2255 motion.
In accordance with Anders, we have reviewed the entire
record in this case and have found no other potentially
meritorious grounds for appeal. Accordingly, we affirm the
district court’s judgment. This court requires that counsel
inform Smith, in writing, of his right to petition the Supreme
Court of the United States for further review. If Smith
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, counsel may move in this
court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Smith. 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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