UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4582

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CARLOS LAMONT WILLIAMS,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Greensboro. William L. Osteen, 

Jr., District Judge. (1:09-cr-00056-WO-1)

Submitted: May 31, 2011 Decided: June 6, 2011

Before WILKINSON, DUNCAN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Henry C. Su, HOWREY LLP, East Palo Alto, California, for 

Appellant. Ripley Rand, United States Attorney, Randall S. 

Galyon, Assistant United States Attorney, Greensboro, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Carlos Lamont Williams pled guilty to possession with 

intent to distribute 1,152.3 grams of N-Benzylpiperazine 

(“BZP”), in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) 

(2006), and possession of a firearm by a convicted felon, in 

violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006). He 

received a 110-month sentence. On appeal, Williams argues his 

sentence was procedurally unreasonable because his advisory 

Guidelines range was not properly calculated. Specifically, he 

maintains that the Guidelines range for BZP was erroneously 

premised on BZP being a 3,4-Methylenedioxymethamphetamine 

(“MDMA”) Mimic Drug and a Controlled Substance Analogue. In 

fact, he claims recent case law and notices from the DEA suggest 

that the most closely related controlled substance to BZP would 

be amphetamine, but much less potent. Next, Williams argues his 

sentence was procedurally unreasonable because the district 

court failed to explain its reasons for denying his motion for a 

downward variance. Last, although Williams acknowledges the 

district court overruled his objection to a firearm enhancement 

as moot, he raises it to preserve his objection. We affirm. 

A sentence is reviewed for reasonableness under an 

abuse of discretion standard. Gall v. United States, 552 U.S. 

38, 51 (2007). This review requires consideration of both the 

procedural and substantive reasonableness of a sentence. Id.; 
3

see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). A 

sentence imposed within the properly calculated Guidelines range 

is presumed reasonable by this court. United States v. MendozaMendoza, 597 F.3d 212, 217 (4th Cir. 2010). In determining the 

procedural reasonableness of a sentence, this court considers 

whether the district court properly calculated the defendant’s 

Guidelines range, treated the Guidelines as advisory, considered 

the 18 U.S.C. § 3553(a) (2006) factors, analyzed any arguments 

presented by the parties, and sufficiently explained the 

selected sentence. Gall, 552 U.S. at 51. 

Williams first argues the district court erred in 

relying on the presentence report (“PSR”), which converted BZP 

to MDMA for purposes of establishing a Guidelines range. As 

noted by the Government and conceded by Williams, Williams 

initially raised this claim in a sentencing memorandum, but 

withdrew the objection at sentencing. The Government posits 

that this claim is waived in light of the withdrawal of the 

objection. Williams counters that he is entitled to plain error 

review for two reasons. First, he claims he was “pressured to 

go along with his counsel’s decision to withdraw the objection 

during sentencing.” Second, he maintains his counsel “failed to 

render effective assistance with respect to the development and 

presentation of this objection” and therefore he “should not be 

bound by his counsel’s decision to withdraw the objection.” 
4

Generally, unpreserved errors in sentencing are 

reviewed for plain error. See Fed. R. Crim. P. 52(b); United 

States v. Olano, 507 U.S. 725, 731-32 (1993). However, a 

defendant may waive appellate review of a sentencing error if he 

raises and then knowingly withdraws an objection to the error 

before the district court. See United States v. Horsfall, 552 

F.3d 1275, 1283 (11th Cir. 2008) (finding that defendant’s 

withdrawal of objection to sentence enhancement precluded 

appellate review of enhancement); United States v. Rodriguez, 

311 F.3d 435, 437 (1st Cir. 2002) (“A party who identifies an 

issue, and then explicitly withdraws it, has waived the 

issue.”); see also United States v. Chapman, 209 F. App’x 253, 

268 n.4 (4th Cir. 2006) (No. 04-5010) (noting that “withdrawal 

of [an] objection amounts to a waiver of any complaint . . . , 

precluding us from considering the issue even under plain error 

review”) (argued but unpublished). An appellant is precluded 

from challenging a waived issue on appeal. See Rodriguez, 311 

F.3d at 437. Such a waiver is distinguishable “from a situation 

in which a party fails to make a timely assertion of a right —

what courts typically call a ‘forfeiture,’” id. (quoting Olano, 

507 U.S. at 733), which, as noted above, may be reviewed on 

appeal for plain error. See Olano, 507 U.S. at 733-34.

Here, the record reflects that Williams initially 

objected to the probation officer’s calculation of his 
5

Guidelines range based on BZP being treated as an MDMA analog. 

However, during sentencing, Williams withdrew his objection. 

Therefore, it is clear that Williams has waived this issue, and 

this Court is precluded from considering it on appeal.

Williams argues that he was essentially pressured into 

agreeing to the withdrawal of the objection and that counsel was 

ineffective in developing the BZP/MDMA conversion objection and 

in choosing to withdraw it. Claims of ineffective assistance 

generally are not cognizable on direct appeal. United States v. 

King, 119 F.3d 290, 295 (4th Cir. 1997). Rather, to allow for 

adequate development of the record, a defendant must bring his 

claim in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion. Id. An 

exception exists where the record conclusively establishes 

ineffective assistance. United States v. Baldovinos, 434 F.3d 

233, 239 (4th Cir. 2006). 

To succeed on his claim, Williams must show that 

(1) trial counsel’s performance was constitutionally deficient 

and (2) such deficient performance was prejudicial. 

Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984). To 

satisfy the performance prong, Williams must demonstrate that 

trial counsel’s performance fell below an objective standard of 

reasonableness under “prevailing professional norms.” Id. at 

688. The prejudice prong is satisfied if Williams demonstrates

that “there is a reasonable probability that, but for [trial] 
6

counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Id. at 694. We conclude there is 

no ineffective assistance conclusively appearing on the record. 

See United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991) 

(an ineffective assistance of counsel claim is best raised in a 

§ 2255 motion so that counsel can be “afforded adequate 

opportunity to explain the reasons surrounding the action of 

inaction to which [petitioner] takes exception”) (internal 

citations omitted). 

To the extent that Williams argues he was pressured 

into withdrawing the objection, his claim is belied by the 

record. Initially, Williams filed a pro se objection to the 

BZP/MDMA conversion. At sentencing, after counsel stated that 

he was withdrawing the objection, Williams informed the court 

that he was uncertain about the withdrawal. After the district 

court afforded him a sixteen-minute recess to confer with 

counsel, Williams informed the court that he had discussed the 

issue with counsel, that he fully understood what was taking 

place, and that he agreed with the withdrawal of the objection. 

Under these circumstances, the record does not reflect undue 

pressure. To the extent that Williams argues counsel pressured 

him into withdrawing the objection, this claim too is better 

raised in a § 2255 motion, where the record may be more fully 
7

developed to reflect the communications between Williams and 

counsel. 

Williams next claims his sentence is procedurally 

unreasonable because the district court did not articulate 

reasons for denying his motion for a downward variance to avoid 

unwarranted sentencing disparities under 18 U.S.C. § 3553(a)(6) 

(2006). Because Williams requested a sentence below the 

Guidelines range, his claim was properly preserved, and this 

court reviews it for reasonableness under an abuse of discretion 

standard, reversing “unless . . . the error was harmless.” 

Lynn, 592 F.3d 572 at 576, 578 (“By drawing arguments from 

§ 3553 for a sentence different than the one ultimately imposed, 

an aggrieved party sufficiently alerts the district court of its 

responsibility to render an individualized explanation 

addressing those arguments, and thus preserves its claim.”); cf.

United States v. Hernandez, 603 F.3d 267, 270 (4th Cir. 2010) 

(reviewing claim of procedural unreasonableness for plain error 

because defendant did not argue for a sentence different from 

the sentence that he received).

At sentencing, Williams’ counsel advised that the 

court start at 100 months and then vary downward based on the 

other cases involving BZP. After reviewing the submitted 

materials, the court stated it “really had a hard time comparing 

things like criminal histories or nature and circumstances of 
8

the offense or all of the history and characteristics of the 

defendant.” It further explained that, while the BZP cases from 

other districts “may be some help in terms of evaluating the 

seriousness of the offense, there are a lot of gaps in there 

that make it difficult to do a direct comparison between the 

sentences that are imposed.” Ultimately, the court denied the 

variance, finding the use of the Guidelines calculation as 

calculated was appropriate. We conclude the district court’s 

explanation was sufficient. This court does not evaluate the 

adequacy of the district court’s explanation “in a vacuum,” but 

also considers “[t]he context surrounding a district court’s 

explanation.” United States v. Montes-Pineda, 445 F.3d 375, 381

(4th Cir. 2006).

Accordingly, we affirm Williams’ sentence.*

AFFIRMED

 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.

 * Because Williams waived his argument as to the district 

court’s calculation of the Guidelines range based on count two, 

we conclude Williams’ argument pertaining to the firearm 

enhancement imposed under the offense level computation for 

count four is moot. See United States Sentencing Guidelines 

Manual § 3D1.3(a) (2009) (instructing that the count producing 

the highest adjusted offense level in the group is used to 

determine the Guideline calculations for the group).