UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4396

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WILLIE MEADOWS, a/k/a Chilly Willie,

Defendant - Appellant.

No. 04-4498

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FREDRICK LAMAR SMITH, a/k/a Red Fred,

Defendant - Appellant.

No. 04-4514

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus
- 2 -

ADRIAN LAMONT JETER, a/k/a Man,

Defendant - Appellant.

Appeals from the United States District Court for the District of

South Carolina, at Spartanburg. Henry F. Floyd, District Judge.

(CR-03-1094)

Submitted: January 31, 2006 Decided: March 3, 2006

Before WILLIAMS and KING, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Hervery B. O. Young, Assistant Federal Public Defender, Greenville,

South Carolina; William H. Ehlies, II, Greenville, South Carolina;

Melissa R. Kimbrough, Columbia, South Carolina, for Appellants.

Elizabeth Jean Howard, OFFICE OF THE UNITED STATES ATTORNEY,

Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
- 3 -

PER CURIAM:

Pursuant to written plea agreements, Willie Meadows,

Fredrick Lamar Smith, and Adrian Lamont Jeter each pled guilty to

conspiracy to distribute cocaine base. Meadows was sentenced to

120 months imprisonment, and Smith and Jeter each were sentenced to

360 months. They appeal from their convictions and sentences.

Their attorneys have filed a brief in accordance with Anders v.

California, 386 U.S. 738 (1967), challenging the validity of the

guilty pleas and the propriety of the sentences. At the direction

of the court, counsel and the Defendants filed supplemental briefs

challenging the validity of their sentences under United States v.

Booker, 543 U.S. 220 (2005). The Defendants asserted additional

claims in their pro se supplemental briefs. For the reasons that

follow, we affirm the Defendants’ convictions and sentences.

We find that the Defendants’ guilty pleas were knowingly

and voluntarily entered after a thorough hearing pursuant to Fed.

R. Crim. P. 11. Each Defendant was properly advised of his rights,

the offense charged, the maximum sentence for the offense, and the

mandatory minimum sentences applicable. The court also determined

that there was an independent factual basis for the pleas and that

the pleas were not coerced or influenced by any promises. See

North Carolina v. Alford, 400 U.S. 25, 31 (1970); United States v.

DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991).
- 4 -

Next, Smith and Jeter argue that the district court erred

in denying their motions to withdraw their guilty pleas. We review

the district court’s denial of a motion to withdraw a guilty plea

for abuse of discretion. United States v. Ubakanma, 215 F.3d 421,

424 (4th Cir. 2000). The defendant bears the burden of

demonstrating that a “fair and just reason” supports his request to

withdraw his plea. Id. This court closely scrutinizes the Rule 11

colloquy and attaches a strong presumption that the plea is final

and binding if the Rule 11 proceeding is adequate. United States

v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995); United States v.

Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992). We have reviewed the

transcript of Smith’s and Jeter’s Rule 11 colloquies and the record

in light of the relevant factors, see United States v. Moore, 931

F.2d 245, 248 (4th Cir. 1991), and we find no abuse of discretion

by the district court in denying their motions to withdraw their

guilty pleas. Thus, we affirm Smith’s and Jeter’s convictions.

Each of the Defendants have challenged their sentences

pursuant to United States v. Booker, which was decided while their

appeals were pending. In Booker, the Supreme Court held that the

mandatory guidelines scheme that provided for sentence enhancements

based on facts found by the court violated the Sixth Amendment.

Booker, 125 S. Ct. at 746-48, 755-56. The Court remedied the

constitutional violation by severing and excising the statutory
- 5 -

provisions that mandate sentencing and appellate review under the

guidelines, thus making the guidelines advisory. Id. at 756-57.

Subsequently, in United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005), this court held that a sentence that was

imposed under the pre-Booker mandatory sentencing scheme and was

enhanced based on facts found by the court, not by a jury or

admitted by the defendant, constitutes plain error that affects the

defendant’s substantial rights and warrants reversal under Booker

when the record does not disclose what discretionary sentence the

district court would have imposed under an advisory guideline

scheme. Hughes, 401 F.3d at 546-56.

Meadows’ sentence

Meadows contends that the district court erred in

enhancing his sentence based on a determination that the drug type

was the crack form of cocaine base. He asserts that, because there

were no stipulations that the drug type was crack, he should be

sentenced pursuant to the powder cocaine guidelines.

Meadows was charged with conspiracy to “distribute and to

possess with intent to distribute 50 grams or more of cocaine base

(commonly known as ‘crack’ cocaine).” He pled guilty to the lesser

included offense of conspiracy with respect to five grams or more

of crack and he and the government stipulated that he would be held

accountable for 20 to 35 grams of cocaine base. In light of the

language of the indictment and Meadows’ admissions in his plea
- 6 -

agreement, we find no judicial factfinding as to drug type, and

thus no potential Booker error.

Meadows also argues that his sentence was erroneously

enhanced in violation of the rule announced in Booker. He argues

that, due to the stipulated drug quantity, the guideline range

applicable to him was 84 to 105 months. However, he was sentenced

to 120 months. This sentence was not the result of judicial

factfinding, but rather was based on the fact that he had a prior

conviction for distribution of cocaine base and the government

filed an information of enhanced sentences pursuant to 21 U.S.C.

§ 851 (2000). Thus, the district court properly sentenced him to

120 months, the applicable mandatory minimum sentence.

Smith’s sentence

At sentencing, Smith was held accountable for 2840.98

grams of crack. This quantity placed him at base offense level 38.

U.S. Sentencing Guidelines Manual § 2D1.1(c)(1) (2003) (“1.5 KG or

more of Cocaine Base”). With 14 criminal history points, he was in

criminal history category VI, and his guideline range was 360 to

life. Additionally, Smith had two prior convictions for a

controlled substance offense or a crime of violence, and therefore

he was properly sentenced as a career criminal with a guideline

range of 360 to life, without regard to the drug quantity. See

United States v. Harp, 406 F.3d 242, 247 (4th Cir.) (finding no

plain error under Booker in the district court’s designation of
- 7 -

Harp as a career offender), cert. denied, 126 S. Ct. 297 (2005);

see also Almendarez-Torres v. United States, 523 U.S. 224, 233-35

(1998).

Smith contends that the amount of drugs was determined,

in part, by statements he made while cooperating. He asserts that

this is in violation of the plea agreement, which provided that

self-incriminating statements he made under the terms of the plea

agreement would not be used against him in determining his

guideline range.

Smith’s admissions to certain drug quantities were made

prior to the plea agreement and were specifically excluded from the

immunity agreement in the plea bargain. Thus, the district court

correctly used these figures to determine Smith’s offense level.

However, because Smith was sentenced as a career offender, the drug

quantity is irrelevant.

Jeter’s sentence

Jeter also argues that his sentence was increased based

on the quantity of drugs attributed to him. Like Smith, Jeter

asserts that the amount of drugs was determined, in part, by

statements he made while cooperating. Jeter’s plea agreement also

provided that information he provided under the terms of the

agreement would not be used against him. However, the agreement

also specifically excluded information known to the attorneys for

the government prior to the date of the agreement.
- 8 -

Jeter’s statement to the officials was given before he

signed the plea agreement. Thus, the immunity statement in the

plea agreement does not apply to Jeter’s admissions made prior to

the agreement. The district court correctly used these figures to

determine Jeter’s offense level.

Jeter was attributed with 1701 grams of crack, which

placed him in offense level 38. USSG § 2D1.1(c)(1) (“1.5 KG or

more of Cocaine Base”). This amount was determined only by

reference to the amounts Jeter personally admitted to in his

statement to the officials. Because Jeter admitted to the drug

amounts that resulted in his offense level, there was no

enhancement based on judicial factfinding with respect to his base

offense level, and thus no error under Booker.

Jeter also challenges the determination that he was a

career offender. The career offender guideline applies to persons

who have two prior convictions for either a crime of violence or a

controlled substance offense. USSG § 4B1.1(a). We find that Jeter

was properly sentenced as career offender. He had two previous

qualifying convictions: one for conspiracy to possess with intent

to distribute cocaine base and one for attempted burglary.

Although he contends that his burglary conviction was not a crime

of violence, “burglary of a dwelling” is specifically included in

the definition of “crime of violence.” USSG § 4B1.2(a).
- 9 -

Jeter argues that the career offender enhancement

increased his sentence beyond that to which he pled guilty, in

violation of Booker. The increase in Jeter’s sentence was based on

prior convictions, not factual findings by the judge, and therefore

there was no error. See Harp, 406 F.3d at 247; Almendarez-Torres,

523 U.S. at 233-35.

Jeter and Smith both argue that the district court erred

by declining to adjust their offense levels downward for acceptance

of responsibility. USSG § 3E1.1(a). Smith and Jeter moved to

withdraw their guilty pleas. In support of the motions, the

district court found that they made inconsistent statements and

also attempted to minimize their parts in the conspiracy. We find

that the district court did not clearly err in finding that they

failed to fully accept responsibility for their conduct. See

United States v. Kise, 369 F.3d 766, 771 (4th Cir. 2004); USSG

§ 3E1.1.

Counsel contends that the district court should have

sentenced the Defendants below the guideline range to account for

the 100-to-1 sentencing disparity between powder and crack cocaine

sentences. This court has consistently upheld the validity of this

sentencing disparity. See United States v. Burgos, 94 F.3d 849,

876 (4th Cir. 1996) (en banc); United States v. Fisher, 58 F.3d 96,

99-100 (4th Cir. 1995). Thus, we do not find the sentences imposed

to be unreasonable. Moreover, “the record as a whole provides no
- 10 -

nonspeculative basis for concluding that the treatment of the

guidelines as mandatory ‘affect[ed] the district court’s selection

of the sentence imposed.’” United States v. White, 405 F.3d 208,

223 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005). Therefore, we

conclude that the Defendants cannot show that their substantial

rights were affected by the district court’s imposition of a

sentence under the mandatory guidelines as they were in effect when

the Defendants were sentenced. Id. at 225.

Finally, the Defendants assert that their attorneys

provided ineffective assistance. Claims of ineffective assistance

of counsel are not cognizable on direct appeal unless the record

conclusively establishes ineffective assistance. United States v.

Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Our review of the

record reveals that the Defendants have failed to meet the high

burden necessary to raise ineffective assistance of counsel claims

on direct appeal.

In conclusion, we affirm the Defendants’ convictions and

sentences. We also deny Jeter’s motion for production of

documents, to withdraw Counsel’s appeal brief, and to file a pro se

appeal. This court requires that counsel inform their clients, in

writing, of the 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 in this court for leave to
- 11 -

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 adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED