UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4289

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SINCLAIR ELLIS, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. George L. Russell, III, District Judge. (1:16-cr-00515-GLR-1)

Submitted: January 11, 2019 Decided: February 14, 2019

Before RICHARDSON and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Megan E. Coleman, MARCUSBONSIB, LLC, Greenbelt, Maryland, for Appellant. Jason Daniel Medinger, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Sinclair Ellis, Jr., pled guilty to conspiracy to distribute and to possess with intent

to distribute heroin and cocaine,

, 846 (2012), and was sentenced to 151

months in prison. Ellis appeals. His attorney has filed a brief in accordance with

Anders v. California,

(1967), raising three issues but stating that there are

no meritorious issues for appeal. Ellis has filed a pro se brief. We affirm.

I

Ellis received a two-level reduction of his offense level based on acceptance of

responsibility. See U.S. Sentencing Guidelines Manual § 3E1.1(a) (2016). He contends

that the district court erred because it did not compel the United States to move for an

additional reduction under USSG § 3E1.1(b). Because Ellis raises this claim for the first

time on appeal, our review is for plain error. See Puckett v. United States,

(2009).

A court may compel the Government to move for the additional reduction if the

Government withholds such a motion for an improper reason. United States v. Divens,

(4th Cir. 2011). An improper reason includes considerations beyond

the requirements listed in the guideline. Among the permissible considerations is the

defendant’s assistance in the investigation or prosecution of the offense by timely

notifying authorities of his intent to plead guilty, thereby allowing the Government to

avoid trial preparation and permitting efficient allocation of Government and court

resources.

at 345–47.

2 We conclude that there was no error, much less plain error, in the court’s not

compelling the filing of a § 3E1.1(b) motion. In a sentencing memorandum, the United

States stated that it would not move for the additional one-level reduction for the

permissible reason that Ellis had not entered a timely guilty plea, thereby requiring the

Government to prepare for trial and respond to various motions. In addition, Ellis

conceded at sentencing that his plea was untimely and declined to object to not receiving

the one-level reduction. Given the parties’ agreement that the guilty plea was not

promptly made, and the fact that the Government had prepared for a trial that was

scheduled to begin roughly two weeks after Ellis entered his plea, the Government was

permitted to not file the motion. Accordingly, the district court did not err in refusing to

compel a § 3E1.1(b) motion.

II

Ellis alleges that the district court considered erroneous and improper factors when

imposing sentence. Our review of the record shows that, although both heroin and

fentanyl were discussed during argument, the court based the sentence only on Ellis’s

involvement with heroin and cocaine, the drugs charged in the superseding indictment.

Further, the court’s mention of drugs in general causing death and the trade of drug

dealing being morally repugnant was permissible, as these facts relate to the serious

nature of Ellis’s offense. See

(a)(1) (2012). Contrary to Ellis’s

argument, the court considered only permissible statutory factors when imposing the

procedurally and substantively reasonable within-Guidelines sentence.

III

3 Ellis claims that his attorney was ineffective for a variety of reasons. A claim of

ineffective assistance of counsel is not cognizable on direct appeal unless ineffectiveness

conclusively appears on the face of the record. United States v. Baptiste,

,

216 n.1 (4th Cir. 2010). Because ineffectiveness does not conclusively appear on the

face of the record, we decline to address this issue.

IV

Finally, Ellis claims that his plea was involuntary because it was unclear that he

was satisfied with his attorney. This claim is not distinct from Ellis’s claim for

ineffective assistance of counsel, discussed above. We further note that during his Rule

11 hearing, Ellis confirmed that he had signed a document stating that he was pleading

guilty knowingly and voluntarily “with the assistance of counsel with whose services he

[was] completely satisfied.” We therefore find no merit to Ellis’s claim.

V

Pursuant to Anders, we have reviewed the entire record and have found no

meritorious issues for appeal. Accordingly, we affirm. Counsel’s motion to withdraw

from representation is denied at this time. This court requires that counsel inform Ellis,

in writing, of the right to petition the Supreme Court of the United States for further

review. If Ellis 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 Ellis. We

dispense with oral argument because the facts and legal contentions are adequately

4 presented in the materials before this court and argument would not aid the decisional

process.

AFFIRMED

5