US v. Charles Rhode, No. 10-4349 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4349 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES EDWARD RHODES, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., Chief District Judge. (1:09-cr-00217-JAB-1) Submitted: March 14, 2011 Decided: April 12, 2011 Before MOTZ, GREGORY, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Kearns Davis, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, LLP, Greensboro, North Carolina, for Appellant. John W. Stone, Jr., Acting United States Attorney, Terry M. Meinecke, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Charles possession of a Edward Rhodes firearm by a pled guilty convicted to felon, unlawful 18 U.S.C. § 922(g)(1) (2006), and was sentenced within the guideline range to a term of fifty-five months of imprisonment. Rhodes appeals his sentence, contending that his sentence should be vacated because (1) discretion the to district depart court below failed the to advisory recognize guideline its range, (2) defense counsel rendered ineffective assistance because he failed to request a departure under U.S. Sentencing Guidelines Manual § 5K2.11 (2009) (Lesser Harms), and (3) resentencing is necessary to allow the district court to reconsider the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2010) sentencing factors in light of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). We affirm. Three search warrant transactions. firearms was were executed found there in based Rhodes on home reports when of a drug Rhodes maintained that he possessed the firearms only for protection after racist graffiti was painted on the rural road in front of his house. At sentencing, he requested a sentence at the low end of the guideline range of 51-63 months. When a sentencing court refuses to depart below the guideline range, its decision is not appealable unless the court failed to understand its authority to depart. 2 United States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008). requested a departure. Here, Rhodes never Therefore, we review the sentence under a deferential abuse-of-discretion standard. States, 552 U.S. 38, 41 (2007). district court committed any Gall v. United Rhodes does not claim that the procedural error. This court presumes that a sentence imposed within a properly calculated guidelines range is substantively reasonable. Go, 517 States, F.3d 551 216, U.S. 218 338, (4th Cir. 346-56 2008); (2007) United States v. see Rita (upholding v. United appellate presumption of reasonableness for within-guidelines sentence). After review of the record, we conclude that Rhodes has failed to overcome the presumption of reasonableness for his withinguidelines sentence. In a footnote to his first claim of error, Rhodes asserts that his trial attorney was ineffective in failing to request a downward departure. Claims of ineffective assistance of counsel are generally not cognizable on direct appeal unless the record conclusively establishes ineffective assistance. United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). In this case, the record does not conclusively show that Rhodes counsel was ineffective. After Rhodes was sentenced, the Supreme Court held, in McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010), that the individual Second Amendment right to bear arms recognized in 3 District of Columbia v. Heller, 554 U.S. 570 (2008), is a fundamental right applicable to the states under the Fourteenth Amendment. Rhodes argues that the district court should have the opportunity to reconsider, in a resentencing hearing, the § 3353(a) factors affecting his sentence in light of McDonald. We conclude that McDonald did not change the legal landscape to the extent that it requires resentencing in Rhodes case because it merely extended to the states the principle announced in Heller before Rhodes was sentenced. We district facts court. and materials therefore legal before We affirm dispense the with sentence oral argument contentions are adequately the and argument court imposed by the because the presented would not in the aid the decisional process. AFFIRMED 4
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