US v. Jarvis Cunningham, No. 14-4463 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4463 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JARVIS SENTIEL CUNNINGHAM, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Timothy M. Cain, District Judge. (7:13-cr-00507-TMC-1) Submitted: December 16, 2014 Before DUNCAN Circuit Judge. and DIAZ, Circuit Decided: Judges, December 18, 2014 and DAVIS, Senior Affirmed by unpublished per curiam opinion. Benjamin T. Stepp, Assistant Greenville, South Carolina, for Sherard, Assistant United States Carolina, for Appellee. Federal Public Defender, Appellant. Carrie Fisher Attorney, Greenville, South Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jarvis Sentiel Cunningham pled guilty, without a plea agreement, to possession with intent to distribute and distribution of a quantity of cocaine base, in violation of 21 U.S.C. § 841(a)(1) Cunningham to (2012). 151 months’ advisory Guidelines range. The district imprisonment, court the sentenced bottom of his On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious grounds for appeal but questioning whether Cunningham’s sentence is reasonable. Cunningham has filed a pro se supplemental brief, challenging his conviction and sentence. We We affirm. review “under a United States, Cunningham’s deferential procedurally defendant’s 552 abuse-of-discretion U.S. reasonable advisory sentence if 38, 41 the court Guidelines for standard.” (2007). Gall v. sentence is calculates the A properly range, reasonableness gives the parties an opportunity to argue for an appropriate sentence, considers the 18 U.S.C. § 3553(a) (2012) factors, does not rely on clearly erroneous facts, sentence. Id. transcript and at pursuant sufficiently 49-51. to After Anders, we sentence is procedurally reasonable. explains reviewing conclude the the that selected sentencing Cunningham’s Cunningham has also failed to rebut the presumption that his within-Guidelines sentence is 2 substantively reasonable. See United States v. Louthian, 756 F.3d 295, 306 (4th Cir.) (explaining presumption), cert. denied, 135 S. Ct. 421 (2014). Cunningham argues in his pro se supplemental brief that counsel rendered ineffective assistance by misadvising him of the potential penalties. Unless an attorney’s ineffectiveness conclusively appears on the face of the record, ineffective assistance direct appeal. Cir. 2008). claims are not generally addressed on United States v. Benton, 523 F.3d 424, 435 (4th Instead, such claims should be raised in a motion brought pursuant to 28 U.S.C. § 2255 (2012), in order to permit sufficient development of the record. United Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). States v. Because there is no conclusive evidence of ineffective assistance of counsel on the face of the record, we conclude that Cunningham’s claim should be raised, if at all, in a § 2255 motion. Finally, Cunningham asserts in his pro se supplemental brief that his conviction violated the Constitution because his drug dealing did not affect interstate commerce. We conclude that Cunningham’s conviction was well within the bounds of the Constitution Leshuk, 65 and reject F.3d 1105, this claim. 1111-12 (4th See United Cir. 1995) Commerce Clause challenge to § 841(a)(1)). 3 States v. (rejecting In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious grounds for appeal. We therefore affirm the district court’s judgment. This court requires that counsel inform Cunningham, in writing, of the right to petition the Supreme Court of the United States for further review. If Cunningham requests that a petition be filed, believes but counsel 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 Cunningham. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 4