United States of America v. Billy Ray Quick

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4575
BILLY RAY QUICK,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-98-113)
Submitted: April 10, 2000
Decided: June 2, 2000
Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Bryan Emery Gates, Winston-Salem, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION
PER CURIAM:
Billy Ray Quick appeals from his conviction, pursuant to a guilty
plea, of one count of possession with intent to distribute cocaine base
in violation of 21 U.S.C. § 841(a)(1) (1994) and 18 U.S.C. § 2 (1994),
and carrying and using a firearm in connection with a drug trafficking
crime in violation of 18 U.S.C. § 924(c) (West Supp. 1999). Quick's
attorney has filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), certifying that Quick's appeal does not present any meri-
torious issues, but raising the following four issues at Quick's request:
(1) whether the guilty plea was knowing and voluntary; (2) whether
Quick was competent to enter a guilty plea while he was under the
influence of prescribed medications; (3) whether Quick received inef-
fective assistance of counsel; and (4) whether the district court erred
by denying Quick's motion for a downward departure. Quick has
been informed of his right to submit a pro se supplemental brief, but
has not done so.
A review of the transcript of Quick's guilty plea colloquy reveals
that the court properly determined that Quick was competent to enter
a plea, that he understood the charges against him, and that his guilty
plea was knowing and voluntary. Although Quick had previously
taken several prescribed medications, he told the district court that the
medications did not affect his ability to think clearly or to understand
the proceedings. He was informed of the maximum and minimum
sentences, and he stated that he understood the court was obligated to
consider the applicable sentencing guidelines. He was informed of the
rights he was waiving by entering a guilty plea. The court, with
Quick's agreement, found a factual basis for accepting the guilty plea
based on information contained in the presentence investigation report
("PSR").
The PSR recommended a base offense level of 38 on the basis of
1.5 kilograms of crack cocaine. See U.S. Sentencing Guidelines Man-
ual § 2D1.1(c)(1) (1998). It also recommended a three-level down-
ward adjustment for Quick's acceptance of responsibility. See USSG
§ 3E1.1(a), (b). Based on Quick's prior convictions, he was deemed
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a career criminal offender and placed in criminal history category VI.
See USSG § 4B1.1. Quick did not file any objections to the PSR.
At sentencing, Quick moved for a downward departure from the
sentencing guidelines on the basis that his criminal history category
was overstated because his prior convictions were misdemeanors. The
court, recognizing its discretion to depart, declined to do so. The court
sentenced Quick to 292 months' imprisonment for the drug convic-
tion, the low end of the sentencing guidelines range, and a mandatory
consecutive 60 month term of imprisonment for the firearm convic-
tion. We find the sentence was not imposed in violation of law and
was not the result of an incorrect application of the sentencing guide-
lines.
Claims of ineffective assistance should be raised by a motion under
28 U.S.C.A. § 2255 (West Supp. 1999), unless it conclusively appears
from the record that counsel did not provide effective assistance. See
United States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992). In this
case, it does not conclusively appear from the record on appeal that
Quick received ineffective assistance of counsel. Consequently, this
claim is more properly raised in a § 2255 motion.
A district court's decision not to grant a motion for downward
departure is not reviewable on appeal unless the court erroneously
believed it lacked the authority to depart. See United States v.
Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990). Here, the district court
clearly recognized its authority to depart, but found it inappropriate
to do so. Therefore, Quick's claim lacks merit.
Pursuant to Anders, this court has reviewed the record for revers-
ible error and found none. We therefore affirm the conviction and
sentence. We deny counsel's motion to withdraw. 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, then counsel may again move 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 ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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