United States of America v. Marcus L. Brooks

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4379
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCUS L. BROOKS,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:11-cr-00041-FPS-JES-1)
Submitted: November 20, 2012 Decided: November 27, 2012
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Franklin W. Lash, Wheeling, West Virginia, for Appellant.
William J. Ihlenfeld, II, United States Attorney, Randolph J.
Bernard, John C. Parr, Assistant United States Attorneys,
Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Following his guilty plea to being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2)(2006), the district court sentenced Marcus L. Brooks
to 108 months’ imprisonment and a three-year term of supervised
release. This appeal timely followed.
In his brief, Brooks challenges the district court’s
rulings on his motion to suppress the firearm seized subsequent
to his arrest and his motion alleging that the Government
violated Jencks v. United States, 353 U.S. 657 (1957), by either
failing to turn over impeachment evidence or tampering with that
evidence. Brooks also appeals his sentence, arguing that his
1993 federal narcotics conviction, for which he was sentenced to
seventy months’ imprisonment, was improperly counted in
determining his criminal history score. For the following
reasons, we affirm.
In response to Brooks’ arguments related to the pre-
plea motions to suppress and for relief based on the alleged
Jencks violation, the Government asserts that, by pleading
guilty without entering a conditional guilty plea pursuant to
Fed. R. Crim. P. 11(a)(2), Brooks waived his right to challenge
the district court’s rulings on these motions. We agree. A
valid, counseled guilty plea waives all antecedent,
nonjurisdictional defects “not logically inconsistent with the

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valid establishment of factual guilt and which do not stand in
the way of conviction if factual guilt is validly established.”
Menna v. New York, 423 U.S. 61, 62 n.2 (1975); see Tollett v.
Henderson, 411 U.S. 258, 267 (1973); United States v. Moussaoui,
591 F.3d 263, 279 (4th Cir. 2010) (“[T]he defendant who has pled
guilty has no non-jurisdictional ground upon which to attack
that judgment except the inadequacy of the plea or the
government’s power to bring any indictment at all.” (internal
quotation marks and citation omitted)). It is clear that Brooks
did not enter a conditional guilty plea; thus, he did not
preserve the right to appeal the court’s adverse rulings on
these motions. And our review of the record confirms that
Brooks’ guilty plea was counseled, knowing, and voluntary. We
accordingly conclude that Brooks’ guilty plea forecloses
appellate review of the pre-plea constitutional and evidentiary
violations alleged in his brief.
We also reject Brooks’ challenge to the district
court’s calculation of his criminal history score. We review a
defendant’s sentence for reasonableness, applying an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007); see also United States v. Horton, 693 F.3d 463, 472 (4th
Cir. 2012). In reviewing the district court’s application of
the Sentencing Guidelines, we review findings of fact for clear
error and questions of law de novo. Horton, 693 F.3d at 474.

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A defendant receives three criminal history points for
a prior sentence that exceeded one year and one month of
imprisonment “that was imposed within fifteen years of the
defendant’s commencement of the instant offense.” U.S.
Sentencing Guidelines Manual (“USSG”) § 4A1.2(e)(1) (2011); see
USSG § 4A1.1(a). Also counted is any such sentence, “whenever
imposed, that resulted in the defendant being incarcerated
during any part of such fifteen-year period.” USSG
§ 4A1.2(e)(1). The unrefuted presentence report establishes
that, within the fifteen-year look-back period, Brooks was
incarcerated pursuant to the seventy-month sentence imposed
following his federal narcotics conviction. We thus discern no
error in the district court’s assignment of criminal history
points to this sentence.
For these reasons, we affirm the criminal judgment.
We deny Brooks’ motion for leave to file a pro se supplemental
brief. Because he is represented by court-appointed counsel who
has filed a brief on the merits, not pursuant to Anders v.
California, 386 U.S. 738 (1967), Brooks is not entitled to file
a pro se supplemental brief. 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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