US v. James Miller, No. 08-4537 (4th Cir. 2008)
Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4537 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES RHETT MILLER, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Anderson. Henry M. Herlong, Jr., District Judge. (8:07-cr-00936-HMH-1) Submitted: November 17, 2008 Decided: December 16, 2008 Before NIEMEYER, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. David W. Plowden, Assistant Federal Public Defender, Greenville, South Carolina, for Appellant. Maxwell B. Cauthen, III, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James agreement, Rhett to Miller possession pled of guilty, an unregistered violation of 26 U.S.C. § 5861(d) (2000). to 115 months imprisonment. without a plea firearm, in Miller was sentenced Finding no error, we affirm. On appeal, counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting there are no meritorious grounds for appeal, but questioning whether Miller s sentence brief, is reasonable. contending that Miller the filed Fed. R. a pro Crim. se supplemental P. 11 hearing was inadequate and that his counsel provided ineffective assistance. The Government elected not to file a responding brief. Miller initially questions the adequacy of the Rule 11 hearing. plea in reviewed Because Miller did not seek to withdraw his guilty the by district this court court, any alleged for plain Rule error. 11 United Martinez, 277 F.3d 517, 524-26 (4th Cir. 2002). error is States v. To establish plain error, Miller must show that an error occurred, that the error was plain, and that the error affected his substantial rights. United States v. White, 405 F.3d 208, 215 (4th Cir. 2005). We Additionally, have reviewed Miller s the record conclusory and find assertions no that error. he is actually innocent of the offense and that his plea was not 2 knowingly and voluntarily made are directly contradicted by the record. Miller reasonable. must next questions whether his sentence is When determining a sentence, the district court calculate the appropriate advisory Guidelines range and consider it in conjunction with the factors set forth in 18 U.S.C. § 3553(a) (2006). 596 (2007). Gall v. United States, 128 S. Ct. 586, Appellate review of a district court s imposition of a sentence, whether inside, just outside, or significantly outside the Guidelines range, is for abuse of discretion. at 591. Id. Sentences within the applicable Guidelines range may be presumed by the appellate court to be reasonable. United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The district court followed the necessary procedural steps in sentencing Sentencing Guidelines Miller, as appropriately advisory, properly treating calculating the and considering the applicable Guidelines range, and weighing the relevant § 3553(a) factors. Furthermore, Miller s sentence, which is no greater than the applicable Guidelines range and below the reasonable. ten-year statutory maximum, may be presumed Thus, we conclude that the district court did not abuse its discretion in imposing the chosen sentence. Miller finally ineffective assistance. contends that his counsel provided An ineffective assistance of counsel 3 claim is generally not cognizable on direct appeal, but should instead be asserted in a post-conviction motion under 28 U.S.C. § 2255 (2000). See United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). However, we have recognized an exception to the general rule when it conclusively appears from the record that defense representation. counsel did provide effective Id. (quoting United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994)). conclusively not establish that Because the record does not counsel was ineffective, Miller s claim is not cognizable on direct appeal. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. court. Accordingly, we affirm the judgment of the district This court requires that counsel inform his client, in writing, of his right to petition United States for further review. the Supreme Court of the If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on the client. We dispense with oral contentions argument adequately because presented in the the facts and materials legal before the court are and argument would not aid in the decisional process. AFFIRMED 4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
