US v. Leroy Lane, No. 12-4656 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4656 UNITED STATES OF AMERICA, Plaintiff Appellee, v. LEROY AUGUSTUS LANE, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Greenville. J. Michelle Childs, District Judge. (6:06-cr-00992-JMC-1) Submitted: March 14, 2013 Decided: March 26, 2013 Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. David W. Plowden, Assistant Federal Public Defender, Greenville, South Carolina, for Appellant. Elizabeth Jean Howard, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Leroy Augustus Lane appeals sentence imposed at his resentencing. from the 240-month On appeal, counsel has filed an Anders * brief, asserting that there are no meritorious issues for appeal but questioning whether Lane s sentence was reasonable. that he Lane has filed a pro se supplemental brief arguing received ineffective assistance of counsel when his attorney did not review the presentence report ( PSR ) with him, failed to object to the Government s reliance on prior charges for which he had not been convicted, and failed to object to the PSR s description of his prior offenses as violent. We affirm. We review Lane s sentence for reasonableness under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). This review entails appellate consideration procedural of both the reasonableness of the sentence. procedural court reasonableness, properly calculated we the and Id. at 51. consider whether defendant s substantive In determining the advisory district Guidelines range, considered the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2012) factors, selected a sentence based on clearly erroneous facts, or failed to explain sufficiently the selected sentence. Id. at 49-51. * If the sentence is free of significant procedural Anders v. California, 386 U.S. 738 (1967). 2 error, we review it for substantive reasonableness, tak[ing] into account the totality of the circumstances. Id. at 51. If the sentence is within the properly calculated Guidelines range, we apply a reasonable. presumption on appeal that the sentence is United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). Such a presumption is rebutted only by showing that the sentence is unreasonable when measured against the § 3553(a) factors. United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks omitted). After review of counsel s sentencing claim and the remainder of the record pursuant to Anders, we conclude that the district court did not abuse its discretion in imposing sentence in this case. Lane did not object to the calculation of his Guidelines range, and the district court properly calculated his advisory Guidelines instructions. The allocution from Lane. factors, explaining warranted in offense including view conduct his of and range court in accordance heard with argument from our remand counsel and The court also considered the § 3553(a) that the a within-Guidelines nature Lane s and history sentence circumstances of Lane s and characteristics unwillingness demonstrated was to accept responsibility for his crime and his recidivism. Even if we may have weighed the § 3553(a) factors differently had we imposed sentence in the first instance, we 3 defer to the district court s decision that the 240-month sentence achieved the purposes of sentencing in Lane s case. See United States ( [D]istrict determining v. courts the Jeffery, have weight 631 F.3d extremely to be given 669, each (4th Cir.) discretion broad 679 when of the § 3553(a) factors. ), cert. denied, 132 S. Ct. 187 (2011). Lane thus fails that to overcome within-Guidelines the appellate sentence is presumption substantively his reasonable. Accordingly, we conclude that the district court did not abuse its discretion in imposing sentence. Lane avers that his counsel was ineffective at the sentencing hearing. To establish ineffective assistance of counsel, Lane must show that: (1) counsel s performance fell below an objective standard of reasonableness; and (2) counsel s deficient performance Washington, 466 U.S. was 668, prejudicial. 687 (1984). Strickland However, claims v. of ineffective assistance of counsel are generally not cognizable on direct appeal, unless counsel s ineffectiveness conclusively appears from the record. United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Here, the record does that counsel was ineffective. not conclusively demonstrate As such, Lane s claims are not cognizable on direct appeal; instead, he can bring these claims 4 in a 28 U.S.C.A. § 2255 (West Supp. 2012) proceeding where he can further develop the record. In accordance with Anders, we have examined the entire record in this case and have found no meritorious issues for review. Accordingly, we affirm Lane s sentence. This court requires that counsel inform Lane in writing of his right to petition the Supreme Court of the United States for further review. If Lane 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 Lane. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5