United States of America v. Tracey Douglas

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5143
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TRACEY DOUGLAS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (0:11-cr-00520-CMC-2)
Submitted: May 21, 2012 Decided: June 5, 2012
Before DUNCAN, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeremy A. Thompson, LAW OFFICE OF JEREMY A. THOMPSON, LLC,
Columbia, South Carolina, for Appellant. Julius Ness
Richardson, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In accordance with a written plea agreement, Tracey
Douglas pled guilty to conspiracy to possess with intent to
distribute 280 grams or more of cocaine base, in violation of 21
U.S.C. § 846 (2006). Douglas was sentenced to 240 months in
prison. He now appeals. His attorney has filed a brief in
accordance with Anders v. California, 368 U.S. 738 (1967),
claiming that defense counsel was ineffective. Douglas has
filed a pro se supplemental brief raising additional issues. We
affirm.
I
Douglas contends that counsel was ineffective because
he allegedly did not advise Douglas that, in accordance with the
plea agreement, the United States would not move for a downward
departure under U.S. Sentencing Guidelines Manual § 5K1.1
(2011). Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal unless the record
conclusively establishes counsel’s “objectively unreasonable
performance” and resulting prejudice. United States v. Benton,
523 F.3d 424, 435 (4th Cir 2008). Rather, to allow for adequate
development of the record, a defendant ordinarily should bring
his ineffective assistance claim in a 28 U.S.C.A. § 2255 (West
Supp. 2011) motion. United States v. Baptiste, 596 F.3d 214,

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216 n.1 (4th Cir. 2010). After reviewing the record, especially
the transcript of the Fed. R. Crim. P. 11 hearing, we conclude
that ineffective assistance does not conclusively appear on the
record. We therefore decline to address the merits of the
claim.
II
In his pro se brief, Douglas argues that his guilty
plea was unknowing because the district court did not comply
with the requirements of Rule 11. More specifically, Douglas
maintains that the district court did not adequately ascertain
that he understood the constitutional rights he was waiving by
pleading guilty.
Because Douglas did not move in the district court to
withdraw his guilty plea, our review is for plain error. See
United States v. Martinez, 277 F.3d 517, 525-26 (4th Cir. 2002).
We discern no such error in this case. Having considered the
transcript of the Rule 11 hearing, we conclude that the court
ascertained that Douglas understood the various trial rights
that he waived by pleading guilty. Additionally, although the
court did not mention its obligation to consider the factors
under 18 U.S.C. § 3553(a) (2006) when imposing sentence, see
Fed. R. Crim. P. 11(b)(1)(M), the court otherwise fully complied
with the Rule. The omission did not affect Douglas’ substantial

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rights, particularly in light of his receiving the statutory
minimum sentence of 240 months. See 21 U.S.C. § 841(b)(1)(A)
(2006).
III
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Douglas’s conviction and sentence. This
court requires that counsel inform Douglas, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Douglas 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 Douglas.
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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