UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4465

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

CHUCK PARKER COLLINGTON, a/k/a Chuck Berry Collington,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Florence. R. Bryan Harwell, District Judge. 

(4:09-cr-00342-RBH-1)

Submitted: February 28, 2011 Decided: March 21, 2011

Before WILKINSON, NIEMEYER, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robert M. Sneed, ROB SNEED LAW FIRM, LLC, Greenville, South 

Carolina, for Appellant. Alfred William Walker Bethea, Jr., 

Assistant United States Attorney, Florence, South Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Pursuant to a written plea agreement, Chuck Collington 

pled guilty to possession with intent to distribute five grams 

or more of cocaine base, 21 U.S.C. § 841(a)(1) (2006). He was 

sentenced to thirty years in prison. Collington now appeals. 

His attorney has filed a brief in accordance with Anders v. 

California, 386 U.S. 738 (1967), raising one issue but stating 

that there are no grounds for appeal. Collington has filed a 

pro se brief and several supplements to that brief

(collectively, the supplemental brief). We affirm. 

I.

In the Anders brief, counsel contends that the 

district court erroneously denied Collington’s motion to 

suppress evidence seized during a traffic stop. In his 

supplemental brief, Collington raises additional Fourth and 

Fifth Amendment issues pertaining to the stop and the related 

suppression hearing.

A valid guilty plea waives all prior nonjurisdictional defects. Tollett v. Henderson, 411 U.S. 258, 267 

(1973); United States v. Willis, 992 F.2d 489, 490 (4th Cir. 
3

1993).1 After reviewing the transcript of Collington’s Fed. R. 

Crim. P. 11 proceeding, we conclude that the district court 

fully complied with that Rule, that Collington’s plea was 

knowingly and voluntarily entered, and that there was a factual 

basis for the plea. Accordingly, Collington’s valid guilty plea 

constituted a waiver of his right to raise issues related to the 

suppression motion.

II.

In the supplemental brief, Collington contends that 

the Government breached the plea agreement when: (1) his offense 

level was not adjusted based on acceptance of responsibility; 

(2) the United States failed to move for a reduction of sentence 

based on his substantial assistance to the Government; and 

(3) the district court questioned him at sentencing about a 

homicide. Because these claims were not raised below, our 

review is for plain error. See United States v. Olano, 507 U.S. 

725, 732-37 (1993). To establish plain error, the defendant 

must show that: (1) an error occurred; (2) the error was plain; 

and (3) the error affected his substantial rights. Id. at 732. 

Even when the defendant makes this showing, we will exercise our 

 1 Collington’s claim in the supplemental brief that his 

indictment was defective also is waived under the cited 

authorities. 
4

discretion to notice the error only if the error “seriously 

affect[s] the fairness, integrity or public reputation of 

judicial proceedings.” Id. (internal quotation marks omitted). 

With respect to acceptance of responsibility, the plea 

agreement provided that, if the district court determined that 

Collington had “readily demonstrated acceptance of 

responsibility,” U.S. Sentencing Guidelines Manual § 3E1.1 

(2008) would apply. The record reveals that Collington 

received a two-level enhancement based on obstruction of 

justice. See USSG § 3C1.1. In light of this enhancement, 

Collington did not accept responsibility for the offense, and he 

was not entitled to a reduction based on acceptance of 

responsibility. See USSG § 3E1.1, cmt. n.4. 

With regard to substantial assistance, the decision 

whether to file a USSG § 5K1.1 motion based on such assistance 

lies solely within the Government’s discretion. See United 

States v. Butler, 272 F.3d 683, 686 (4th Cir. 2001). Thus, 

unless the Government has obligated itself in the plea agreement 

to make such a motion, its refusal to make a § 5K1.1 motion is 

not reviewable on appeal absent evidence of an unconstitutional 

motive. Wade v. United States, 504 U.S. 181, 185-87 (1992); 

Butler, 272 F.3d at 686. 

Here, the Government did not obligate itself in the 

plea agreement to make a § 5K1.1 motion. The plea agreement 
5

provided in pertinent part that the Government would make such a 

motion if Collington cooperated and the Government deemed his 

cooperation to be substantial assistance. The Government’s 

discretionary decision not to move for a reduction is not 

reviewable because there is no evidence that the decision was 

based on an unconstitutional motive. 

Finally, Collington contends that, while the plea 

agreement stated that he would not be questioned in connection 

with any homicide, the district court asked him about a murder 

at sentencing. This questioning, he contends, breached the plea 

agreement. We find this claim to lack merit because the plea 

agreement provided that, while Collington would not be 

questioned in connection with any homicide, the agreement also 

stated that the provision did not apply to information known to 

the Government prior to the date of the plea agreement. Because 

the Government knew at the time of the plea agreement of a 

homicide committed by Collington in 2004, the district court’s 

question at sentencing was not a breach of Collington’s 

agreement with the Government.

III.

Collington contends that the district court erred by 

applying the wrong crack-to-powder cocaine ratio and that the 

court incorrectly calculated the amount of drugs constituting 
6

relevant conduct. Because Collington’s advisory Guidelines 

range was determined based on the murder cross-reference, rather 

than by reference to the Drug Quantity Table, there was no plain 

error. See United States v. Olano, 507 U.S. at 732. 

IV.

Following preparation of the presentence investigation 

report (PSR), the parties agreed upon a sentence of thirty 

years. At sentencing, Collington repeatedly assured the court 

that he had agreed to this sentence freely and voluntarily after 

having sufficient time to discuss the matter with his attorney. 

Collington argues for the first time on appeal that 

his plea was invalid because he was told that if he did not 

abandon any objection to the thirty-year sentence, he would be 

sentenced to life in prison.2

 2 We note that the maximum penalty for the offense is not 

life, but forty years in prison. See 21 U.S.C. § 841(b)(1)(B) 

(2006). 

 He also claims that he was not 

told that the homicide would be used in determining his advisory 

Guidelines range. Notably, Collington did not move at 

sentencing or at any other time to withdraw his guilty plea. 

Further, his assertions are at odds with his representations at 

his Rule 11 hearing that he understood the concept of relevant 

conduct and that his plea was made voluntarily. The assertions 
7

also conflict with his several assurances to the court at 

sentencing that he had voluntarily agreed to the thirty-year 

sentence after consultation with his attorney. Under these 

circumstances, we find no plain error with respect to 

Collington’s claim that his plea was invalid. See Blackledge v. 

Allison, 431 U.S. 63, 73-74 (1978); United States v. Stewart, 

198 F.3d 984, 987 (7th Cir. 1999); United States v. DeFusco, 949 

F.2d 114, 119 (4th Cir. 1991). 

V.

Collington contends for the first time on appeal that 

he was entitled to the benefit of the safety valve provision. 

See 18 U.S.C. § 3553(f) (2006); USSG § 5C1.2. The provision 

properly was not applied because Collington used violence in 

connection with the offense. See United States v. BeltranOrtiz, 91 F.3d 665, 669 (4th Cir. 1996). Collington’s failure 

to receive the benefit of this provision was not plain error. 

See United States v. Olano, 507 U.S. at 732. 

VI.

Collington contends that his attorney was ineffective 

because of a conflict of interest. Our review of the official 

district court docket sheet reveals that counsel filed a motion 

for a hearing on whether a conflict of interest existed because 
8

of his representation of both Collington and an individual who 

was expected to testify at Collington’s sentencing. 

Collington’s attorney also filed a motion to subpoena a 

different individual who could testify as to whether certain 

Government witnesses expected to testify at Collington’s 

sentencing about the murder were, in fact, witnesses to the 

murder. 

To allow for adequate development of the record, a 

defendant ordinarily must raise a claim of ineffective 

assistance of counsel in a 28 U.S.C.A. § 2255 (West Supp. 2010) 

motion unless it conclusively appears on the face of the record 

that counsel provided inadequate assistance. United States v. 

Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Because no 

witnesses testified at Collington’s sentencing, we conclude that 

the record does not conclusively establish ineffective 

assistance.3

VII.

Collington contends that he was improperly assessed 

one criminal history point for marijuana possession. This issue 

 3 In a related claim, Collington complains that certain 

docket entries pertaining to these matters are missing from the 

district court’s docket sheet. We have reviewed the official 

docket sheet and all pertinent documents, some of which are 

sealed. We conclude that the official docket sheet is complete.
9

was not preserved for appeal, and our review is for plain error. 

See United States v. Olano, 507 U.S. at 732. The PSR discloses 

that Collington received one point for a 2005 conviction of 

simple marijuana possession, for which he received a fine. A 

misdemeanor marijuana conviction merits the one-point assessment 

under USSG § 4A1.1(c). United States v. Russell, 564 F.3d 200, 

206 (3rd Cir. 2009). There was no plain error. 

VIII.

In accordance with Anders, we have reviewed the entire 

record for meritorious issues and have found none. We therefore 

affirm. 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 in this court for 

leave to withdraw from representation. Counsel’s motion must 

state that a copy was served on the client. We deny the motion 

to disclose grand jury materials and 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