United States of America v. Malcolm Jermaine Carry

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4032
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MALCOLM JERMAINE CARRY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (CR-04-167)
Submitted: September 29, 2006 Decided: November 6, 2006
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Rosemary Godwin, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Jennifer P. May-
Parker, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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*The guidelines ranges for counts 1, 3, and 6 were greater
than the statutory maximum terms, so the court imposed the
statutory maximums pursuant to USSG § 5G1.1.
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PER CURIAM:
Malcolm Jermaine Carry pled guilty and was convicted of
conspiracy to commit armed robbery, interference with commerce by
robbery and aiding and abetting, and brandishing and discharging a
firearm during and in relation to a crime of violence and aiding
and abetting, in violation of 18 U.S.C. §§ 2, 371,
924(c)(1)(A)(iii), 1951 (2000). The court sentenced Carry to the
statutory maximum of 60 months on count one, a concurrent 188-month
term on count 2, a consecutive statutory maximum 120-month term on
count 3, and a 180-month statutory maximum term on count 6, to run
concurrently with the sentences on counts 1 and 2. * Thus, Carry
received a total of 308 months’ imprisonment.
On appeal, Carry argues that because his retained
attorney did not appear in federal court and his appointed attorney
advised him not to plead guilty pursuant to a plea agreement, his
ability to obtain a lower sentence was compromised. A claim of
ineffective assistance of counsel must be brought in a collateral
proceeding under 28 U.S.C. § 2255 (2000), unless it conclusively
appears from the face of the record that counsel was ineffective.
United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir.), cert.
denied, 126 S. Ct. 1407 (2006); United States v. DeFusco, 949 F.2d
114, 120-21 (4th Cir. 1991). After thoroughly reviewing the

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record, we conclude the record in this case does not conclusively
demonstrate that Carry’s counsel was ineffective. Carry’s
allegations are not a substitute for a more extensive examination
under 28 U.S.C. § 2255 (2000). See United States v. Mandello, 426
U.S. 1021 (4th Cir. 1970).
Carry also argues that his sentence is unreasonable
because the court applied the sentencing guidelines as mandatory.
In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court
excised the portions of the Sentencing Reform Act that made the
guidelines mandatory, and the Court made clear that the guidelines
were to be applied in an advisory manner. Carry was sentenced
eleven months after the Booker decision, and there is nothing in
the record to suggest the court did not apply the guidelines as
advisory, as directed by Booker. To the extent Carry alleges the
district court failed to properly consider the 18 U.S.C. § 3553(a)
(West 2000 & Supp. 2006) factors, this sentencing argument fails.
Although the court did not specifically reference § 3553(a), its
explanation of why it sentenced Carry at the low end of the
advisory guidelines range reflects that it considered some of the
§ 3553(a) factors. See United States v. Moreland, 437 F.3d 424,
432 (4th Cir.) (noting that a court need not discuss each § 3553(a)
factor “in checklist fashion”), cert. denied, 126 S. Ct. 2054
(2006).

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Accordingly, we affirm the judgment of the district
court. 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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