United States v. Anthony Devore Hailstock, 103 F.3d 121, 4th Cir. (1996)
Uploaded by
Scribd Government DocsUnited States v. Anthony Devore Hailstock, 103 F.3d 121, 4th Cir. (1996)
Uploaded by
Scribd Government Docs103 F.
3d 121
NOTICE: Fourth Circuit Local Rule 36(c) states that citation
of unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Anthony Devore HAILSTOCK, Defendant-Appellant.
No. 95-5488.
United States Court of Appeals, Fourth Circuit.
Submitted Oct. 15, 1996.
Decided Dec. 16, 1996.
James Robert Mann, Greenville, South Carolina, for Appellant. Harold
Watson Gowdy, III, OFFICE OF THE UNITED STATES ATTORNEY,
Greenville, South Carolina, for Appellee.
Before ERVIN, NIEMEYER, and MICHAEL, Circuit Judges.
OPINION
PER CURIAM:
Anthony Devore Hailstock pled guilty to conspiracy to possess with the intent
to distribute and to distribute cocaine base, in violation of 21 U.S.C. 846
(1994). The district court sentenced Hailstock to serve 262 months
imprisonment. He appeals his conviction and sentence. Hailstock's attorney has
filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967),
raising three issues but stating that, in his view, there are no meritorious issues
for appeal. Finding no reversible error, we affirm Hailstock's conviction and
sentence.
Hailstock's counsel specifically asserts that the district court erred by
sentencing Hailstock as a career offender, by refusing to grant Hailstock's
motion for a downward departure from the United States Sentencing
Guidelines, and by refusing to modify Hailstock's sentence based on the
disparity of the sentences received by Hailstock and his co-defendants. In
Hailstock's pro se supplemental brief, he contends that his guilty plea lacked an
independent factual basis, that his plea was not given knowingly, and that the
district court erred by refusing to allow him to withdraw his guilty plea.
3
Hailstock was over eighteen years old when he committed the instant felony
offense, which involved a controlled substance. Hailstock also has two prior
crimes-of-violence felony convictions. In 1989, Hailstock was convicted of
strong-arm robbery and receiving and possessing stolen goods and sentenced to
serve ten years imprisonment. He was also convicted of assault and battery of a
high and aggravated nature and sentenced to serve an additional ten-year term.
See United States Sentencing Commission, Guidelines Manual, 4B1.1
(Nov.1994) (outlining career offender status requirements). Hailstock's criminal
history satisfied the career offender criteria; therefore, we find that he was
properly sentenced according to the career offender provision.
Hailstock claims he was entitled to a downward departure in sentencing
because he played a minor role in the offense, because of the unconscionable
disparity between the sentences imposed on Hailstock and his co-defendants,
and because of the minor nature of Hailstock's prior conviction for assault and
battery. However, these claims are not properly before this court because the
district court's refusal to depart downward is not reviewable on appeal. United
States v. Bayerle, 898 F.2d 28, 30 (4th Cir.), cert. denied, 498 U.S. 819 (1990).
Hailstock also asserts that the district court should have exercised its discretion
and modified his sentence because of the disparity in the lengths of sentences
imposed on him and his co-defendants. * The district court is only allowed to
depart from the applicable sentencing guidelines range to correct the disparity
of the sentences received between co-defendants upon proof of actual
prosecutorial misconduct. United States v. Fonville, 5 F.3d 781, 783 (4th
Cir.1993), cert. denied, --- U.S. ---, 62 U.S.L.W. 3754 (May 16, 1994) (No. 937612). Hailstock fails to allege prosecutorial misconduct, and we find no
evidence of it. Therefore, the district court did not abuse its discretion in
refusing to modify Hailstock's sentence.
Hailstock's assertion that his plea was accepted without an independent factual
basis is directly belied by the record. A special agent with the South Carolina
Law Enforcement Division informed the district court of Hailstock's
involvement in the offense. We find that this recitation of the evidence satisfied
all the essential elements of the offense and sufficiently supported Hailstock's
guilty plea.
7
We also find that Hailstock's guilty plea was knowingly and intelligently given.
The district court found Hailstock to be legally competent to offer his plea. He
was informed of the essential elements of the offense to which he was pleading
guilty. The district court also advised Hailstock of the possible punishment
range. Further, Hailstock responded affirmatively when questioned as to
whether he understood the nature of the proceedings and if he still wished to
offer a guilty plea after being informed of the punishment range.
Hailstock also challenges the district court's refusal to grant his motion to
withdraw his guilty plea. We review a district court's refusal to allow plea
withdrawal under an abuse of discretion standard. United States v. Brown, 617
F.2d 54, 55 (4th Cir.1980). To warrant a withdrawal of a plea, a defendant has
the burden of showing a "fair and just" reason for the withdrawal, even if the
government has not shown that it would be prejudiced by the withdrawal.
United States v. Moore, 931 F.2d 245, 248 (4th Cir.), cert. denied, 502 U.S.
857 (1991). Because the district court found that Hailstock's plea was
knowingly and voluntarily given; that the defendant had not credibly asserted
his legal innocence; that there was a substantial delay between the entering of
the plea and the motion to withdraw; and, that to allow a withdrawal of his plea
at that stage of the proceedings would result in a waste of judicial resources, the
district court properly concluded that Hailstock failed to show a fair and just
reason that would warrant withdrawal of his guilty plea. We therefore find that
the district court did not abuse its discretion in denying Hailstock's withdrawal
motion.
In accordance with the requirements of Anders, we have examined the entire
record in this case and find no other meritorious issues for appeal. 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 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
One of Hailstock's co-defendants, the actual target of the undercover
One of Hailstock's co-defendants, the actual target of the undercover
investigation, received a sentence of 121 months imprisonment. The other was
sentenced to serve 60 months imprisonment
You might also like
- 100% (1)United States v. Vyron U. Hargrett, AKA Sealed 1 Andre v. Williams, AKA Sealed 10 and Roger Mattison, AKA Sealed 14, Derrick D. Hargrett, AKA Sealed 2 Shondale L. Mable, AKA Sealed 3 Vernon W. Youngblood, Jr., AKA Sealed 4 Iris M. Stevens, AKA Sealed 5 Miles David Smith, AKA Sealed 6 David McKinney AKA Sealed 7 Richard A. Brown, AKA Sealed 8 William Sanders, AKA Sealed 9 Alvin Branch, AKA Sealed 11 Alonzo Lewis, AKA Sealed 12 John Paul Pennisi, AKA Sealed 13 and Timothy Lewis, 156 F.3d 447, 2d Cir. (1998)7 pages
