United States v. Bernard Brickhouse

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 21, 2024
• Docket: 23-4307
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4307

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BERNARD ANTHONY BRICKHOUSE, a/k/a Mitch Sosa,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, District Judge. (3:22-cr-00026-GMG-RWT-9)

Submitted: April 1, 2024 Decided: June 21, 2024

Before QUATTLEBAUM and RUSHING, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Charles T. Berry, CHARLES T. BERRY, ESQUIRE, Kingmont, West Virginia, for Appellant. Lara Kay Omps-Botteicher, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee.

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PER CURIAM:

Pursuant to a written plea agreement, Bernard Anthony Brickhouse pled guilty to

conspiracy to possess with intent to distribute and to distribute Eutylone, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(C), 846. The district court sentenced Brickhouse to 87 months’

imprisonment and three years’ supervised release. Counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for

appeal, but raising for the court’s consideration whether there was ineffective assistance of

counsel or prosecutorial misconduct warranting setting aside the judgment, and whether

the sentence was procedurally and substantively reasonable. Brickhouse was afforded the

opportunity to file a pro se supplemental brief, but did not do so. The government did not

file a brief. Finding no reversible error, we affirm.

We review de novo an ineffective assistance of counsel claim made on direct appeal

but “will reverse only if it ‘conclusively appears in the trial record itself that the defendant

was not provided . . . effective representation.’” United States v. Freeman, 24 F.4th 320,

326 (4th Cir. 2022) (en banc) (quoting United States v. Fisher, 477 F.2d 300, 302

(4th Cir. 1973)). Because such claims generally are not cognizable on direct appeal, they

should normally be raised in a motion brought pursuant to 28 U.S.C. § 2255 to permit

sufficient development of the record. United States v. Kemp, 88 F.4th 539, 546

(4th Cir. 2023). To succeed on an ineffective assistance of counsel claim, a “defendant

must show that counsel’s performance was deficient” and “that the deficient performance

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish

deficient performance, “the defendant must show that counsel’s representation fell below

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an objective standard of reasonableness,” id. at 688, and overcome “a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance,”

id. at 689. To establish prejudice, the defendant must show “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. We have reviewed the record and conclude that it does

not conclusively appear that counsel was ineffective.

To establish prosecutorial misconduct, a defendant bears the burden of showing that

“‘(1) the prosecutor’s remarks or conduct were improper and (2) that such remarks or

conduct prejudicially affected [the defendant’s] substantial rights so as to deprive him of a

fair [sentencing proceeding].’” United States v. Benson, 957 F.3d 218, 234 (4th Cir 2020)

(quoting United States v. Caro, 597 F.3d 608, 624 (4th Cir. 2010)). We review for plain

error if the claim was not raised in the district court. United States v. Alerre, 430 F.3d 681,

689 (4th Cir. 2005). “In reviewing for plain error, we must affirm unless an appellant can

show that (1) an error was made, (2) it was plain, and (3) it affected the appellant’s

substantial rights.” Id. We conclude that there is no evidence that the prosecutor breached

the plea agreement. Brickhouse’s Guidelines base offense level was consistent with the

plea agreement. And the Government requested a within-Guidelines range sentence, as the

Government agreed to do in the plea agreement.

We review a defendant’s sentence “under a deferential abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 41 (2007). We must first determine that the

district court committed “no significant procedural error.” Id. at 51. In doing so, we

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consider whether the district court properly calculated the defendant’s advisory Guidelines

range, gave the parties an opportunity to argue for an appropriate sentence, considered the

18 U.S.C. § 3553(a) sentencing factors, and sufficiently explained the selected sentence.

Id. If the sentence is procedurally reasonable, we will review the substantive

reasonableness of the sentence. Id. A sentence must be “sufficient, but not greater than

necessary,” to satisfy the statutory purposes of sentencing. 18 U.S.C. § 3553(a). “Any

sentence that is within or below a properly calculated Guidelines range is presumptively

reasonable.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). That

presumption can be rebutted only by showing that the sentence is unreasonable when

measured against the § 3553(a) factors. Id.

The district court properly calculated the advisory Sentencing Guidelines range,

heard argument from counsel, provided Brickhouse an opportunity to speak, considered

the § 3553(a) sentencing factors, and explained its reasons for imposing the chosen

sentence. There is no indication in the record that Brickhouse’s within-Guidelines term of

imprisonment is unreasonable. Accordingly, we conclude that Brickhouse’s sentence is

both procedurally and substantively reasonable.

In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.

This court requires that counsel inform Brickhouse, in writing, of the right to petition the

Supreme Court of the United States for further review. If Brickhouse 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

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state that a copy thereof was served on Brickhouse. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

AFFIRMED