United States of America v. Darrell Koonce, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-4402
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRELL KOONCE, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. Richard E. Myers, II, Chief District Judge. (4:22-cr-00036-M-RJ-1)
Submitted: July 8, 2024 Decided: July 29, 2024
Before GREGORY and BENJAMIN, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Peter M. Wood, LAW OFFICE OF PETER WOOD, Raleigh, North
Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, Lucy Partain
Brown, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Darrell Koonce, Jr., appeals his conviction and 188-month sentence imposed
following his guilty plea to possession with intent to distribute 40 grams or more of a
mixture and substance containing a detectable amount of fentanyl in violation of 21 U.S.C.
§ 841(a)(1). On appeal, Koonce’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no meritorious grounds for appeal
but questioning whether Koonce’s guilty plea was knowing and voluntary, whether
Koonce’s sentence was procedurally reasonable where his career offender predicates were
based on no contest or Alford* pleas, whether plea counsel was ineffective, and whether
there was any prosecutorial misconduct. Koonce was advised of his right to file a pro se
supplemental brief but has not done so. The Government has declined to file a brief. We
affirm.
Before accepting a guilty plea, the court must conduct a plea colloquy during which
it must inform the defendant of, and determine that the defendant understands, the rights
he is relinquishing by pleading guilty, potential immigration consequences, the charge to
which he is pleading, and the maximum and mandatory minimum penalties he faces. Fed.
R. Crim. P. 11(b)(1). The court also must ensure that the plea is voluntary and not the
* North Carolina v. Alford, 400 U.S. 25 (1970); see United States v. Mastrapa, 509
F.3d 652, 659 (4th Cir. 2007) (“An Alford plea refers to a plea in which the defendant
consents to a prison sentence even though he is unwilling or unable to admit his
participation in the acts constituting the crime.” (internal quotation marks omitted)).

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result of threats or force, Fed. R. Crim. P. 11(b)(2), and that a factual basis supports the
plea, Fed. R. Crim. P. 11(b)(3).
Because Koonce did not seek to withdraw his guilty plea, this court reviews the
adequacy of the Rule 11 hearing for plain error. United States v. Williams, 811 F.3d 621,
622 (4th Cir. 2016). “Under the plain error standard, this [c]ourt will correct an
unpreserved error if (1) an error was made; (2) the error is plain; (3) the error affects
substantial rights; and (4) the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Harris, 890 F.3d 480, 491 (4th Cir.
2018) (internal quotation marks omitted). “In the Rule 11 context, this inquiry means that
[Koonce] must demonstrate a reasonable probability that, but for the error, he would not
have pleaded guilty.” United States v. Sanya, 774 F.3d 812, 816 (4th Cir. 2014) (internal
quotation marks omitted). Upon review, we find that Koonce’s plea was knowing and
voluntary and that the district court fully complied with Rule 11.
Generally, we review a defendant’s sentence “under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). Our review
first looks to whether the district court committed any procedural errors, which might
include “failing to calculate (or improperly calculating) the [Sentencing] Guidelines range,
treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Id. at 51. When “determining whether a district court properly applied
the advisory [Sentencing] Guidelines, including application of any sentencing
enhancements, we review the district court’s legal conclusions de novo and its factual

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findings for clear error.” United States v. Morehouse, 34 F.4th 381, 387 (4th Cir. 2022)
(cleaned up).
In reviewing a sentence for substantive reasonableness, we examine “the totality of
the circumstances.” Gall, 552 U.S. at 51. “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). “Such a presumption can only be rebutted by showing that
the sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” Id.
We have considered the claims raised in the Anders brief and conclude that
Koonce’s within-Guidelines sentence is procedurally and substantively reasonable. The
district court properly calculated the applicable Guidelines range, listened to the parties’
arguments and Koonce’s allocution, considered the § 3553(a) factors, and explained its
reasons for denying the motion for a downward variance. That Koonce’s career offender
predicates involved Alford or no contest pleas in which he did not admit guilt does not call
into question his designation as a career offender. See U.S. Sentencing Guidelines Manual
§ 4B1.2(c) (2021); United States v. King, 673 F.3d 274 (4th Cir. 2012) (holding that Alford
plea results in an adjudication of guilt that qualifies as a “prior sentence” for criminal
history purposes). We therefore discern no abuse of discretion in the imposition of
Koonce’s sentence.
Finally, Koonce’s claim of ineffective assistance of counsel is nonspecific. Upon
review, because ineffective assistance of counsel does not appear conclusively on the
record, we decline to consider any such claim. United States v. Faulls, 821 F.3d 502,
507-08 (4th Cir. 2016). Absent this showing, the ineffective assistance claim should be

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raised in a motion brought pursuant to 28 U.S.C. § 2255, to permit sufficient development
of the record. Id. at 508; United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
Finally, Anders counsel cites potential prosecutorial misconduct but there is no support for
this claim in the record.
Accordingly, we affirm the district court’s judgment. In accordance with Anders,
we have reviewed the entire record in this case and found no meritorious grounds for
appeal. This court requires that counsel inform Koonce, in writing, of the right to petition
the Supreme Court of the United States for further review. If Koonce 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 Koonce.
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

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