US v. Keisha Sims, No. 13-4422 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4422 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEISHA MONIQUE SIMS, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, Senior District Judge. (3:09-cr-00867-CMC-1) Submitted: November 21, 2013 Decided: November 25, 2013 Before KING, DUNCAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Leslie T. Sarji, SARJI LAW FIRM, LLC, Charleston, South Carolina, for Appellant. Tommie DeWayne Pearson, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Keisha Sims appeals from the revocation supervised release and resulting eight-month sentence. of her Counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal but raising whether the sentence imposed was reasonable and whether Sims received ineffective assistance of counsel when counsel allegedly did not advise Sims that she could cure her violation for being in arrears on restitution by paying the arrearage. Sims has not filed a pro se supplemental brief, and the Government declined to file a brief. Finding no error, we affirm. Sims questions the reasonableness of her eight-month revocation sentence. The district court has broad discretion to impose upon a release. 2010). sentence revoking a defendant s supervised United States v. Thompson, 595 F.3d 544, 547 (4th Cir. Thus, this court will affirm a sentence imposed after revocation of supervised release if it is within the governing statutory range and not plainly unreasonable. United States v. Crudup, 2006). 461 F.3d 433, 439-40 (4th Cir. Before determining whether the sentence is plainly unreasonable we must decide whether it is unreasonable. Id. at 438. In doing so, the the court follow[s] generally 2 procedural and substantive sentences. considerations used in reviewing original Id. A sentence or revocation is procedurally reasonable if the district contained court in has Chapter 7 considered of the the policy Sentencing statements Guidelines and the applicable 18 U.S.C. § 3553(a) (2012) factors, Crudup, 461 F.3d at 440, and has adequately explained the sentence chosen, though it need not explain the sentence in as much detail as when imposing the original sentence. sentence is substantively Thompson, 595 F.3d at 547. reasonable if the district A court states a proper basis for its imposition of a sentence up to the statutory maximum. considering the Crudup, above, the 461 F.3d appeals at court 440. decides sentence is not unreasonable, it should affirm. If, after that Id. at 439. the In this initial inquiry, the court takes a more deferential posture concerning issues of fact and the exercise of discretion than it does applying the reasonableness review to post-conviction Guidelines sentences. United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007). Only if this court finds the sentence unreasonable must the court decide whether it is plainly so. Id. at 657. Under this court s deferential standard Sims sentence is not plainly unreasonable. record establishes that the district 3 court of review, A review of the considered the advisory Guidelines range of six to twelve months. the district court drew upon specific Furthermore, § 3553(a) factors in determining the proper sentence, and noted that it believed that Sims could conclude not that comply Sims with supervised eight-month release. revocation Thus, sentence we was not unreasonable, nor was it plainly so. Sims also claimed that she did not receive effective assistance of counsel because counsel allegedly did not advise her that she could cure her violation for being in arrears on restitution by paying the arrearage. Claims of ineffective assistance of counsel are generally not cognizable on direct appeal unless the record conclusively establishes counsel s objectively unreasonable performance and resulting prejudice. United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). Instead, ineffective assistance claims are most appropriately pursued in 28 U.S.C.A. § 2255 (West Supp. 2013) proceedings. See United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). We determine that the limited record before this court fails to counsel. conclusively establish the ineffectiveness of Sims Although we are not conclusively deciding the issue, even if Sims was not appropriately counseled on the restitution arrearage issue, she still was in violation of her supervised release on two other Class C violations. 4 Therefore, she has not established prejudice. Accordingly, we decline to consider Sims ineffective assistance claim at this time. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the revocation of Sims supervised release and her sentence. This court requires that counsel inform Sims, in writing, of the right to petition the Supreme Court of the United States for further review. If Sims 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 Sims. We dispense with oral legal contentions are before this and argument adequately because presented in the the facts and materials court argument would not aid the decisional process. AFFIRMED 5
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