US v. Adrian Kearney, No. 12-4111 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4111 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ADRIAN A.D., LAMONT KEARNEY, a/k/a Adrian Carlton White, a/k/a Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. W. Earl Britt, Senior District Judge. (4:10-cr-00041-BR-1) Submitted: September 11, 2012 Decided: September 26, 2012 Before DAVIS, KEENAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Mary Jude Darrow, LAW OFFICE OF MARY JUDE DARROW, Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Adrian Lamont Kearney appeals his convictions of distributing at least five grams of cocaine base and possessing with intent to distribute at least fifty grams of cocaine base, in violation of 21 month sentence. U.S.C. § 841 (2006), and his eighty-four Counsel for Kearney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious issues on appeal but questioning whether Kearney s Guidelines range was correctly calculated and whether trial counsel was ineffective. Kearney was notified 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. Because Kearney did not move to withdraw his guilty plea, the Fed. R. Crim. P. 11 plea colloquy is reviewed for plain error. United States v. Martinez, 277 F.3d 517 (4th Cir. 2002). After Anders, we a complete conclude that review the of the district record court pursuant to substantially complied with Fed. R. Crim. P. 11 and thus did not plainly err in accepting Kearney s plea. We therefore affirm Kearney s convictions. We applying the review Kearney s sentence abuse-of-discretion States, 552 U.S. 38, 51 (2007). both the procedural and for standard. reasonableness, Gall v. United This requires consideration of substantive 2 reasonableness of the sentence. Cir. Id.; United States v. Lynn, 592 F.3d 572, 575 (4th 2010). correctly After calculated determining the whether advisory the Guidelines district range, court we must determine whether the court considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed the arguments presented by the parties, and sufficiently explained the selected sentence. Lynn, 592 F.3d at 575-76; United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). If the sentence is free of significant procedural error, we review the substantive reasonableness of the sentence. Lynn, 592 F.3d at 575; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). We first procedurally enhancement conclude in his offense Kearney s Kearney reasonable. that received level for sentence a obstruction is two-level of justice under U.S. Sentencing Guidelines Manual § 3C1.1 (2010). That provision describes that when a defendant willfully obstructed or impeded the administration of justice with respect to the investigation, his levels. This provision evidence during an material hindrance. offense arrest level applies if that shall when be a increased defendant destruction by two destroys amounts to a USSG § 3C1.1 cmt. n.4. The threshold for materiality under the Guidelines is low. United States v. Gormley, 201 F.3d 290, 984 (4th Cir. 2000). not object to the enhancement 3 at Because Kearney did sentencing, his claim is reviewed for plain error. Lynn, 592 F.3d at 576-77. We conclude that the district court did not plainly err in imposing the obstruction district enhancement. court s We calculation further of conclude Kearney s category was likewise not plain error. that criminal the history Additionally, Kearney s within-Guidelines sentence is substantively reasonable. United States v. Powell, 650 F.3d 388, 395 (4th Cir.), cert. denied, 132 S. within Ct. a 350 (2011) (this properly-calculated court presumes Guidelines that range is a sentence reasonable). We thus affirm Kearney s sentence. To ineffective the extent assistance demonstrated such Kearney of seeks counsel, he ineffectiveness. cognizable on direct appeal. to raise has The not claim the issue of conclusively is thus not United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006); see also United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) ( [I]t is well settled that a claim of ineffective assistance should be raised in a 28 U.S.C. § 2255 appeal, motion unless in the the district record court rather conclusively than shows on direct ineffective assistance. ) (internal quotation marks omitted). Accordingly, we affirm. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. convictions and sentence. We therefore affirm Kearney s This 4 court requires that counsel inform Kearney, in writing, of the right to petition the Supreme Court of the United States for further review. If Kearney 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 Kearney. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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