United States v. Smalls, 4th Cir. (2011)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 10-5035
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
WILLIAM ISAAC SMALLS,
Defendant - Appellant.
No. 10-5043

v.
Appeals from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00008-MR-1; 1:96-cr-00075-MR-DLH-1)
No. 10-5044

v.
Appeal from the United States District Court for the Western
District of North Carolina, at Shelby.
Martin K. Reidinger,
District Judge. (4:97-cr-00115-MR-DLH-1)
Submitted:
May 27, 2011
Decided:
June 3, 2011
Before GREGORY and DIAZ, Circuit Judges, and HAMILTON, Senior

Circuit Judge.
Affirmed by unpublished per curiam opinion.
Scott C. Brown, SCOTT C. BROWN LAW OFFICE, Wheeling, West

Virginia, for Appellant.
Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William
written
plea
Isaac
agreement,
Smalls
to
pled
bank
guilty,
robbery,
pursuant
in
violation
to
of
a
18
U.S.C. 2113(a) (2006), and using and carrying a firearm in

furtherance of a crime of violence, in violation of 18 U.S.C.
924(c)(1)(A) (2006).
Smalls committed these offenses in 2009
while he was on supervised release.
Smalls also admitted to
violating the terms of his supervised release.
The district
court sentenced Smalls to a total of 262 months imprisonment,

the bottom of the applicable Guidelines range, and ordered him
to pay $4000 in restitution.
Additionally, the court imposed a
concurrent twenty-four-month sentence on the supervised release

violations.
Finding no error, we affirm.
Appellate counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), in which he asserts there are
no meritorious issues for appeal but questions the adequacy of
the Fed. R. Crim. P. 11 hearing.
Counsel certified that he
served a copy of the Anders brief on Smalls, and the clerks

office
notified
supplemental
Smalls
brief.
of
Smalls
his
right
did
not
to
file
file
a
timely
pro
se
pro
se
supplemental brief, but has instead moved to strike counsels

brief
and
asserts
that
his
counsel
provided
ineffective
assistance and that the Government breached the plea agreement.

The Government elected not to file a responsive brief.
3
Counsel questions whether the district court complied

with the requirements of Rule 11 but points to no specific error
by the court.
As Smalls did not seek to withdraw his guilty
plea in the district court or otherwise preserve any alleged

Rule 11 error by timely objection, review by this court is for
plain error.
United States v. Dominguez Benitez, 542 U.S. 74,
76 (2004); United States v. Martinez, 277 F.3d 517, 524-25 (4th

Cir. 2002).
To establish plain error, the defendant must show
that an error occurred, that the error was plain, and that the
error affected his substantial rights.
United States v. Olano,
507 U.S. 725, 732-34 (1993); United States v. Massenburg, 564

F.3d 337, 342-43 (4th Cir. 2009) (stating defendant bears burden
of establishing each of the plain error requirements).
reviewed
the
record
and
conclude
that
the
We have
district
court
committed no reversible error in its conduct of the Rule 11

hearing.
In his motions to strike, Smalls contends that his
counsel provided ineffective assistance by failing to afford him
the opportunity to challenge the brief filed by counsel.
ineffective
assistance
of
counsel
claim
generally
is
An
not
cognizable on direct appeal, but should instead be asserted in a

post-conviction
2010).
motion
under
28
U.S.C.A.
2255
(West
Supp.
See United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999).
This court may address [a claim of ineffective

4
assistance]
on
direct
appeal
only
if
the
lawyers
ineffectiveness conclusively appears from the record.
United
States
2006).
v.
Because
Baldovinos,
our
docket
434
shows
F.3d
that
233,
239
counsel
(4th
served
Cir.
copy
of
the
Anders brief on Smalls, and the clerks office notified Smalls

of his right to file a pro se supplemental brief, the record
does not conclusively establish that counsel was ineffective.
Therefore, Smalls ineffective assistance of counsel claim is
not cognizable on direct appeal.
Smalls also alleges that the Government breached the
terms of the plea agreement by advocating for application of the
career offender Guideline provision.
It is well-established
that the interpretation of plea agreements is rooted in contract

law,
and
that
each
party
should
receive
the
benefit
of
its
United States v. Bowe, 257 F.3d 336, 345 (4th Cir.
bargain.
2001) (quoting United States v. Peglera, 33 F.3d 412, 413 (4th

Cir. 1994)).
of
plea
error.
2006).
We review questions regarding the interpretation
agreements
de
novo
and
factual
questions
for
clear
United States v. Chase, 466 F.3d 310, 314 (4th Cir.

We
have
reviewed
the
record
and
conclude
that
the
Government did not breach the plea agreement.

In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal.
Accordingly, we affirm the judgments of the district

5
court.
We deny Smalls motions to strike.
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, but
counsel believes that such a petition would be frivolous, then

counsel
may
move
representation.
was
served
on
this
court
for
leave
to
withdraw
from
Counsels motion must state that a copy thereof

the
client.
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 in
the decisional process.
AFFIRMED

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

UNITED STATES OF AMERICA,

UNITED STATES OF AMERICA,

May 27, 2011

Before GREGORY and DIAZ, Circuit Judges, and HAMILTON, Senior

Affirmed by unpublished per curiam opinion.

Scott C. Brown, SCOTT C. BROWN LAW OFFICE, Wheeling, West

Unpublished opinions are not binding precedent in this circuit.

U.S.C. 2113(a) (2006), and using and carrying a firearm in

Smalls committed these offenses in 2009

while he was on supervised release.

Smalls also admitted to

violating the terms of his supervised release.

court sentenced Smalls to a total of 262 months imprisonment,

Additionally, the court imposed a

concurrent twenty-four-month sentence on the supervised release

Finding no error, we affirm.

Appellate counsel filed a brief pursuant to Anders v.

Counsel certified that he

served a copy of the Anders brief on Smalls, and the clerks

supplemental brief, but has instead moved to strike counsels

assistance and that the Government breached the plea agreement.

Counsel questions whether the district court complied

As Smalls did not seek to withdraw his guilty

plea in the district court or otherwise preserve any alleged

United States v. Dominguez Benitez, 542 U.S. 74,

76 (2004); United States v. Martinez, 277 F.3d 517, 524-25 (4th

To establish plain error, the defendant must show

United States v. Olano,

507 U.S. 725, 732-34 (1993); United States v. Massenburg, 564

committed no reversible error in its conduct of the Rule 11

cognizable on direct appeal, but should instead be asserted in a

See United States v. Richardson, 195 F.3d 192, 198 (4th

This court may address [a claim of ineffective

ineffectiveness conclusively appears from the record.

Anders brief on Smalls, and the clerks office notified Smalls

that the interpretation of plea agreements is rooted in contract

United States v. Bowe, 257 F.3d 336, 345 (4th Cir.

2001) (quoting United States v. Peglera, 33 F.3d 412, 413 (4th

We review questions regarding the interpretation

United States v. Chase, 466 F.3d 310, 314 (4th Cir.

Government did not breach the plea agreement.

Accordingly, we affirm the judgments of the district

We deny Smalls motions to strike.

This court requires

that counsel inform his client, in writing, of his right to

If the client requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then

Counsels motion must state that a copy thereof

because the facts and legal contentions are adequately presented

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