US v. Kirby Amlee, No. 08-4156 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4156 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KIRBY LOREN AMLEE, Defendant - Appellant. No. 08-4157 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KIRBY LOREN AMLEE, Defendant - Appellant. Appeals from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., District Judge. (1:06-cr-00376-NCT-1; 1:06-cr-00424-NCT-1) Submitted: September 29, 2008 Decided: December 31, 2008 Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Gregory Davis, Assistant Federal Public Defender, Winston-Salem, North Carolina, for Appellant. Michael Francis Joseph, Angela Hewlett Miller, Assistant United States Attorneys, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Kirby Loren Amlee pled guilty, pursuant to a written plea agreement, to two counts of possession of firearms in commerce after having been dishonorably discharged from the Armed Forces, in violation of 18 U.S.C. §§ 922(g)(6), 924(a)(2) (2000), and was sentenced to 46 months imprisonment. Amlee s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that, in his view, there are no meritorious issues for appeal, but questioning sentencing Amlee. whether the district court erred in Amlee has filed a supplemental pro se brief addressing these issues and asserting that he received ineffective assistance of counsel. Finding no error, we affirm. Because Amlee did not move in the district court to withdraw his guilty plea, any challenge to the propriety of the Fed. R. Crim. P. 11 hearing is reviewed for plain error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Before accepting a plea, the district court must ensure that the defendant understands the nature of the charges against him, the mandatory minimum and maximum sentences, and various other rights, so it is clear the defendant is knowingly and voluntarily entering his plea. The court also must determine whether there is a factual basis for the plea. Fed. R. Crim. P. 11(b); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). Our review of the plea hearing transcript reveals that the district court conducted a thorough 3 Rule 11 colloquy, ensuring that Amlee s plea was knowing and voluntary and that there was an independent factual basis for the plea. This court reviews the sentence imposed by the district court for reasonableness, applying an abuse of discretion standard. Gall v. United States, 128 S. Ct. 586, 597 (2007); see also United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). sentencing a defendant, calculate the guideline a district range; (2) court treat must: the (1) When properly guidelines as advisory; (3) consider the factors set out in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008); and (4) explain its reasons for selecting a sentence. Pauley, 511 F.3d at 473. We presume that a sentence within the properly calculated sentencing guidelines range is reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see also Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding application of rebuttable correctness of within-guideline sentence). presumption of Here, the district court followed the appropriate procedures in sentencing Amlee, and we find no abuse of discretion in its imposition of the 46-month sentence. We therefore find that Amlee s sentence is reasonable. Amlee contends that the district court erred by failing to downwardly depart from the guideline range pursuant to U.S. Sentencing Guidelines diminished capacity. Manual § 5K1.13 (2007), based on his This ruling is not reviewable unless the 4 district court was under the mistaken impression that it lacked the authority to depart. (4th Cir. 2008) United States v. Brewer, 520 F.3d 367, 371 (no authority to review denial of downward departure, even after Booker); see also United States v. Cooper, 437 F.3d 324, 333 (3d Cir. 2006) (collecting cases declining to review a district court s decision not to depart, even after Booker). Here, the district court clearly understood its authority to depart; therefore, this claim is not cognizable on appeal. Amlee also asserts a challenge to the effectiveness of his trial attorney. Claims of ineffective assistance of counsel are not cognizable on direct appeal unless the record conclusively establishes ineffective assistance. 195 F.3d 192, development of 198 the (4th Cir. record, United States v. Richardson, 1999). claims of To allow for ineffective adequate assistance generally should be brought in a 28 U.S.C. § 2255 (2000) motion. United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). that the record does not conclusively establish We find ineffective assistance. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. therefore affirm Amlee s convictions and sentence. We This court requires that counsel inform Amlee, in writing, of his right to petition the Supreme Court of the United States for further review. If Amlee requests that a petition be filed, but counsel believes 5 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 Amlee. We 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 6

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