                               UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.
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

                                            2
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

                                                    3
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

                                      4
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.



                                                      5
            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).

                                             6
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

                                             7
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.



                                             8
            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

                                            9
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



                                                    10
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.



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