                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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        non-

jurisdictional defects.        Tollett v. Henderson, 411 U.S. 258, 267

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




                                         2
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.



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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

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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

                                             5
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        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

     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).



                                     6
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.   Beltran-

Ortiz, 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

                                        7
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.



                                                8
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



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