Professional Documents
Culture Documents
No. 10-4804
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00052-MR-1)
Submitted:
Decided:
August 9, 2011
Charles
Y.
Sipe,
GOODMAN,
ALLEN,
&
FILETTI,
PLLC,
Charlottesville, Virginia, for Appellant.
Anne M. Tompkins,
United States Attorney, Richard Lee Edwards, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
PER CURIAM:
Darrell Eugene Banks appeals his conviction and 108month sentence for three counts of possession of a firearm by a
convicted felon in violation of 18 U.S.C. 922(g)(1) (2006) and
one count of possession of an unregistered firearm in violation
of 26 U.S.C. 5861(d), 5845 (2006).
follow, we affirm.
Banks, who was suspected of robbing a bank in North
Carolina in 2008, was indicted on three charges related to that
bank
robbery,
charges.
in
addition
to
the
aforementioned
firearms
robbery
charges.
His
plea
agreement
contained
four-level
enhancement
pursuant
to
USSG
2K2.1(b)(6)
submitting
to
the
2K2.1(b)(6)
enhancement,
Banks
plea
agreement
further
stated
that
Banks
understood that the district court had not yet determined his
sentence, and that any estimate from any source, including his
defense attorney, was a prediction rather than a promise, and
that
the
sentence
district
up
to
provides that
probation
court
the
the
office
retained
statutory
Government
of
all
process,
including
all
offenses
committed[.]
the
discretion
maximum.
will
facts
relevant
Finally,
The
inform
pertinent
information
the
parties
impose
agreement
the
to
to
court
the
also
and
the
sentencing
concerning
agreed
that
the
an
R.
Crim.
P.
11,
and
concluded
that
Bankss
plea
was
report
(PSR).
The
PSR
calculated
Bankss
was
subject
to
the
2K2.1
enhancement
for
use
or
found
at
2K2.1(c)(1)
would
apply.
Because
Bankss offense level for the bank robbery was greater than the
3
stipulation
to
lower
offense
level.
The
sentencing,
the
district
court,
over
Bankss
that
offense
the
cross-reference
level
obstruction
accordingly.
of
justice
and
responsibility,
Bankss
resulting
twenty-eight.
With
and
applying
adjustments
criminal
calculated
total
history
enhancements
for
acceptance
offense
category
imposed
108-month
sentence
and
Bankss
this
level
of
II,
for
of
was
his
The district
timely
appeal
followed.
On
appeal,
Banks
raises
two
claims
of
error:
that
I.
Banks
first
argues
that
his
trial
counsel
did
not
appropriately consider the possibility of a 2K2.1(c)(1) crossreference and that had he known of the possibility that he would
be sentenced under that cross-reference he would not have pled
guilty.
Thus,
he
argues,
counsel
provided
ineffective
assistance.
Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal.
F.3d 290, 295 (4th Cir. 1997).
States
v.
Hoyle,
33
F.3d
415,
418
(4th
Cir.
Id.;
1994).
if
the
assistance.
record
United
conclusively
States
v.
establishes
Richardson,
195
ineffective
F.3d
192,
198
the
record
does
not
conclusively
sentencing
imposition
of
hearing,
the
after
the
cross-reference,
establish
PSR
Banks
At the start of
issued
recommending
confirmed
to
the
Thus, this
II.
Although
Banks
argued
at
sentencing
that
the
that an error occurred, that the error was plain, and that the
error
affected
Muhammad,
478
his
F.3d
substantial
247,
249
rights.
United
States
Even
if
v.
Banks
fairness,
unless
integrity
proceedings.
Id.
the
or
error
public
(internal
seriously
reputation
quotation
marks
affect[s]
the
of
judicial
and
citation
omitted).
Plea agreements are grounded in contract law, and both
parties should receive the benefit of their bargain.
States
v.
Dawson,
587
F.3d
640,
645
United
The
U.S.
257,
supervisory
262
(1971).
concerns,
the
Because
of
constitutional
government
is
held
to
and
greater
States
v.
Harvey,
791
F.2d
294,
303
United
will inform the court and the probation office of all facts
pertinent to the sentencing process, including all information
concerning the offenses committed[.]
that
enhancement
for
and
he
perhaps
would
using
be
most
subject
firearm
in
importantly,
to
the
conjunction
Banks
2K2.1(b)(6)
with
another
The
Government
introduced
evidence
at
sentencing
parties.
not in breach.
Accordingly, we affirm the judgment of the district
court.
legal
before
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED