UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4866

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ELWOOD AVERY,

Defendant – Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Asheville. Martin K. Reidinger, 

District Judge. (1:08-cr-00128-MR-DLH-2)

Submitted: August 11, 2010 Decided: September 9, 2010

Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

Dennis M. Hart, Washington, D.C., for Appellant. Amy Elizabeth 

Ray, Assistant United States Attorney, Asheville, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Elwood Avery appeals the 188-month sentence imposed 

following his guilty plea, pursuant to a written plea agreement, 

to one count of conspiracy to distribute fifty grams or more of 

cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846 

(2006). Avery’s counsel filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), asserting that there are no 

meritorious grounds for appeal, but questioning whether: (1) the 

district court failed to ensure Avery’s guilty plea was knowing 

and voluntary, (2) the district court properly sentenced Avery 

as a career offender, (3) the district court erred in failing to 

take into account the powder-to-crack cocaine disparity when 

sentencing Avery, and (4) Avery conclusively showed that he 

received ineffective assistance of counsel. Avery filed a pro 

se supplemental brief also raising the issue of whether the 

district court properly sentenced him as a career offender. We 

affirm the conviction, vacate the sentence, and remand for 

resentencing. 

Counsel first questions whether Avery’s guilty plea 

was knowing and voluntary. Prior to accepting a defendant’s 

guilty plea, Federal Rule of Criminal Procedure 11 requires the 

district court to address the defendant in open court and ensure 

he understands, among other things, the nature of the charge 

against him, the possible punishments he faces, and the rights 
3

he relinquishes by pleading guilty. Fed. R. Crim. P. 11(b)(1). 

Additionally, the district court must “determine that there is a 

factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). 

Because Avery did not move to withdraw his guilty plea 

in the district court or raise any objections to the Rule 11 

colloquy, the colloquy is reviewed for plain error. United 

States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002); United 

States v. General, 278 F.3d 389, 393 (4th Cir. 2002). To 

demonstrate plain error, a defendant must show that: (1) there 

was an error; (2) the error was plain; and (3) the error 

affected his “substantial rights.” United States v. Olano, 507 

U.S. 725, 732 (1993). A defendant’s substantial rights are 

affected if we determine that the error “influenced the 

defendant’s decision to plead guilty and impaired his ability to 

evaluate with eyes open the direct attendant risks of accepting 

criminal responsibility.” United States v. Goins, 51 F.3d 400, 

402-03 (4th Cir. 1995) (internal quotation marks omitted); see 

also Martinez, 277 F.3d at 532 (holding that a defendant must 

demonstrate that he would not have pled guilty but for the 

error). 

Counsel suggests that the district court’s acceptance 

of the parties’ stipulation of the factual basis for the plea 

could be problematic. Prior to accepting a guilty plea, the 

district court “need only be subjectively satisfied that there 
4

is a sufficient factual basis for a conclusion that the 

defendant committed all of the elements of the offense.” United 

States v. Mitchell, 104 F.3d 649, 652 (4th Cir. 1997). At the 

sentencing hearing, the parties stipulated to the facts in the 

Presentence Investigation Report (“PSR”) as forming a sufficient 

factual basis for the plea. Upon review, we conclude that the 

district court did not err in accepting the facts as set out in 

the PSR. We have also reviewed the plea colloquy and find that 

the district court fully complied with the mandates of Rule 11. 

Therefore, we find that Avery’s guilty plea was knowing and 

voluntary. 

Next, both counsel and Avery challenge Avery’s career 

offender designation. Because Avery failed to challenge his 

career offender designation in the district court, we review for 

plain error. United States v. Branch, 537 F.3d 328, 343 (4th 

Cir. 2008), cert. denied, 129 S. Ct. 943 (2009). To qualify as 

a career offender: (1) the defendant must have been at least 

eighteen years old at the time of the offense of conviction; 

(2) the offense of conviction must have been a felony crime of 

violence or controlled substance offense; (3) and the defendant 

must have at least two prior felony convictions for crimes of 

violence or controlled substance offenses. USSG § 4B1.1(a). A 

prior felony conviction includes a crime of violence or 

controlled substance offense that is punishable by more than one 
5

year imprisonment, “regardless of whether such offense is 

specifically designated as a felony and regardless of the actual 

sentence imposed.” USSG § 4B1.2(a), (b), cmt. n.1.

Neither counsel nor Avery disputes that Avery’s 1993 

conviction for felony robbery with a dangerous weapon 

constitutes a predicate offense. However, counsel questions 

whether Avery’s prior drug conviction is a predicate offense 

because the offense is not currently punishable by imprisonment 

for more than one year. In 1995, Avery pled guilty to “Felony 

Sell/Deliver Cocaine” after selling 0.11 grams of crack cocaine 

to an undercover officer, and was sentenced to three years’ 

imprisonment. Thus, based on the sentence Avery received, it is 

clear the offense was punishable by a term of imprisonment 

exceeding one year as of the date of Avery’s sentencing. 

Counsel maintains that under the current statutory 

scheme, Avery’s exposure could be less than one year 

imprisonment. However, we have held that whether a prior 

conviction was punishable by a term of imprisonment exceeding 

one year is governed by the law in effect on the date of 

conviction. United States v. Carter, 300 F.3d 415, 427 (4th 

Cir. 2002); United States v. Johnson, 114 F.3d 435, 445 (4th 

Cir. 1997). Accordingly, Avery’s 1995 drug conviction qualifies 

as a predicate offense for career offender status. 
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Avery also argues in his pro se supplemental brief 

that his prior conviction was not a felony because he possessed 

less than twenty-eight grams of cocaine base. Avery 

misinterprets the applicable statute. Pursuant to North 

Carolina General Statutes § 90-95(h)(3), one convicted of 

possession of twenty-eight grams or more of cocaine is guilty of 

the felony of trafficking in cocaine. However, Avery was 

convicted of selling cocaine base, not trafficking in cocaine 

base. North Carolina General Statutes § 90-95(a)(1), (b)(1)

makes selling cocaine base a felony without regard to the 

quantity of drugs sold. Thus, his argument fails. 

Counsel and Avery also argue that the drug conviction 

is not a predicate offense because it was obtained in violation 

of the Double Jeopardy Clause. Avery contends that, because 

North Carolina assessed a drug tax against him after his arrest 

and a portion of the drug tax was satisfied with money seized 

upon his arrest, his subsequent conviction violated the Double 

Jeopardy Clause. 

In Lynn v. West, 134 F.3d 582, 588-93 (4th Cir. 1998), 

we held that the North Carolina “drug tax” is a criminal penalty 

for purposes of the Double Jeopardy Clause. Thus, the drug 

offense for which the drug tax was paid cannot be counted as a 

predicate offense toward a career offender designation. United 

States v. Brandon, 363 F.3d 341, 345-46 (4th Cir. 2004). 
7

However, Avery fails to prove that he was assessed and in fact 

paid the drug tax prior to his conviction. Therefore, we 

conclude the district court did not err on this basis in 

counting the 1995 drug offense as a predicate offense for 

purposes of the career offender designation. 

Counsel also questions whether the district court 

erred in failing to consider the sentencing disparity between 

crack and powder cocaine when imposing sentence. Because Avery 

failed to raise this argument in the district court, we review 

for plain error. Branch, 537 F.3d at 343.

The district court does not err if, when sentencing a 

defendant, it concludes “that the crack/powder disparity yields 

a sentence ‘greater than necessary’ to achieve [18 U.S.C.] 

§ 3553(a)’s [(2006)] purposes.” Kimbrough v. United States, 552 

U.S. 85, 110 (2007). Rather, under the advisory Guidelines, 

“district courts are entitled to reject and vary categorically 

from the crack-cocaine Guidelines based on a policy disagreement 

with those Guidelines.” Spears v. United States, __ U.S. __, 

129 S. Ct. 840, 843-44 (2009). The district court is not 

required to apply a one-to-one ratio; Spears merely permits a

district court to substitute its own ratio if it determines the 

sentencing disparity is unwarranted. 

Here, the district court did not determine that the 

sentencing disparity was unwarranted; in fact, it explicitly 
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stated that the sentence imposed was “not greater than necessary 

to comply with the purposes set forth in 18 U.S.C. § 3553(a).” 

Thus, we find that the district court did not err in failing to 

sentence Avery based on a one-to-one ratio. 

Counsel next questions whether Avery received 

ineffective assistance of counsel. A defendant may raise a 

claim of ineffective assistance “on direct appeal if and only if 

it conclusively appears from the record that his counsel did not 

provide effective assistance.” United States v. Martinez, 136 

F.3d 972, 979 (4th Cir. 1998). To prove ineffective assistance 

the defendant must satisfy two requirements: (1) “that counsel’s 

representation fell below an objective standard of 

reasonableness” and (2) “that there is a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Strickland v. 

Washington, 466 U.S. 668, 688, 694 (1984). In the context of a 

guilty plea, “the defendant must show that there is a reasonable 

probability that, but for counsel’s errors, he would not have 

pleaded guilty and would have insisted on going to trial.” 

Hill v. Lockhart, 474 U.S. 52, 59 (1985). Our review of the 

record reveals no conclusive evidence that Avery’s counsel did 

not adequately represent him. Therefore, we decline to consider 

Avery’s ineffective assistance claims on direct appeal. 
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While none of the claims raised by counsel or Avery 

warrant relief, our required review of the record pursuant to 

Anders discloses that the district court failed to permit Avery 

the opportunity to allocute at the sentencing hearing. This 

omission was erroneous. Fed. R. Crim. P. 32(i)(4)(A)(ii) 

provides that “[b]efore imposing sentence, the [district] court 

must . . . address the defendant personally in order to permit 

the defendant to speak or present any information to mitigate 

the sentence.” Here, the district court, after taking care of 

all the issues raised and prior to imposing sentence, addressed 

counsel stating: “All right, sir. Then if there’s nothing 

further, I’ll proceed to sentence in [the calculated] range.” 

Counsel indicated that there was nothing further; however, the 

district judge failed to address Avery directly before 

announcing his sentence. Because Avery did not object to this 

omission in the district court, we review for plain error. 

United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). 

Applying this heightened standard, we nevertheless conclude that 

the district court plainly erred in failing to permit Avery the 

opportunity to allocute.

Our finding of plain error does not, however, end the 

inquiry; we must next assess whether such error affected Avery’s 

substantial rights. Olano, 507 U.S. at 732. Even if so, we are 

not required to correct a plain error unless “a miscarriage of 
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justice would otherwise result,” meaning that “the error 

seriously affects the fairness, integrity, or public reputation 

of judicial proceedings.” Id.

“[A] defendant [is] not prejudiced by the denial of 

allocution when there was no possibility that he could have 

received a shorter sentence.” Muhammad, 478 F.3d at 249. 

However, we have held that:

When a defendant was unable to address the court 

before being sentenced and the possibility remains 

that an exercise of the right of allocution could have 

led to a sentence less than that received, we are of 

the firm opinion that fairness and integrity of the 

court proceedings would be brought into serious 

disrepute were we to allow the sentence to stand.

United States v. Cole 27 F.3d 996, 999 (4th Cir. 1994). 

We conclude that, in this case, the district court’s 

plain error affected Avery’s substantial rights. Had the 

district court permitted Avery the opportunity to allocute, 

Avery may have raised an argument regarding the sentencing 

disparity between crack cocaine and powder cocaine and persuaded 

the district court to find that the disparity was unwarranted. 

Or he might have articulated other factors that would have 

persuaded the district court that further leniency was 

appropriate. Thus, because there is a possibility Avery may 

have received a lower sentence had he been afforded the 

opportunity to personally address the district court prior to 
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imposition of his sentence, we are constrained to vacate Avery’s 

sentence and remand for resentencing.*

In accordance with Anders, we have examined the entire 

record and find no other meritorious issues for appeal. We 

therefore affirm Avery’s conviction, but vacate his sentence and 

remand for resentencing. Counsel’s motion to withdraw is 

denied. 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 IN PART,

VACATED IN PART,

AND REMANDED

 * By this disposition, we express no opinion whether a lower 

sentence is appropriate, leaving that determination to the 

discretion of the district court.