United States v. Joseph Bair, Jr. , 446 F. App'x 549 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4028
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSEPH R. BAIR, JR.,
Defendant – Appellant.
No. 11-4029
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSEPH R. BAIR, JR.,
Defendant – Appellant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Beckley. Irene C. Berger,
District Judge. (5:08-cr-00264-1; 5:09-cr-00192-1)
Submitted: August 24, 2011 Decided: September 12, 2011
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Christopher S. Dodrill, ALLEN GUTHRIE & THOMAS, PLLC,
Charleston, West Virginia, for Appellant. Miller A. Bushong,
III, OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West
Virginia; Betty Adkins Pullin, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Joseph R. Bair, Jr., appeals the twenty-seven-month
sentence imposed following his guilty plea to distributing
hydrocodone, in violation of 21 U.S.C.A. § 841(a)(1) (West 1999
& Supp. 2011), and corruptly obstructing the due administration
of tax laws, in violation of 26 U.S.C. § 7212(a) (2006).
Counsel for Bair filed a brief in this court in accordance with
Anders v. California, 386 U.S. 738 (1967), questioning whether
the district court adequately explained the sentence and whether
trial counsel provided ineffective assistance. Counsel states,
however, that he has found no meritorious grounds for appeal.
Bair filed several pro se supplemental briefs. Because we find
no meritorious grounds for appeal, we affirm.
We review a sentence imposed by a district court under
a deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Lynn, 592 F.3d
572, 575-76 (4th Cir. 2010). We begin by reviewing the sentence
for significant procedural error, including such errors as
“failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider
the [18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence — including an explanation for any
deviation from the Guidelines range.” Gall, 552 U.S. at 51. If
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there are no procedural errors, we then consider the substantive
reasonableness of the sentence, taking into account the totality
of the circumstances. United States v. Mendoza-Mendoza, 597
F.3d 212, 216 (4th Cir. 2010).
“When rendering a sentence, the district court ‘must
make an individualized assessment based on the facts
presented.’” United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009) (quoting Gall, 552 U.S. at 50) (emphasis omitted).
Accordingly, a sentencing court must apply the relevant
§ 3553(a) factors to the particular facts presented and must
“‘state in open court’” the particular reasons that support its
chosen sentence. Id. (quoting 18 U.S.C.A. § 3553(c) (West 2000
& Supp. 2011)). The court‘s explanation need not be exhaustive;
it must be “sufficient ‘to satisfy the appellate court that the
district court has considered the parties’ arguments and has a
reasoned basis for exercising its own legal decisionmaking
authority.’” United States v. Boulware, 604 F.3d 832, 837
(4th Cir. 2010) (quoting Rita v. United States, 551 U.S. 338,
356 (2007)) (alterations omitted).
We conclude that the sentence imposed by the district
court was both procedurally and substantively reasonable. The
district court calculated the Guidelines range and understood
that it was advisory. Furthermore, it is apparent that the
court had a reasoned basis for its decision. The court made an
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individualized statement explaining the sentence imposed. Thus,
the court imposed a reasonable sentence under the circumstances.
Additionally, Bair is not entitled to relief on his
claim of ineffective assistance of counsel. We will address a
claim of ineffective assistance on direct appeal only if the
lawyer’s ineffectiveness conclusively appears on the record.
United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
Otherwise, such claims are more properly raised in a motion
filed pursuant to 28 U.S.C.A. § 2255 (West Supp. 2010). Our
review convinces us that ineffective assistance does not
conclusively appear on the face of this record, and therefore we
decline to address this claim on direct appeal.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore grant Bair’s motions to file additional pro se
supplemental briefs, and affirm the district court’s judgment.
This court requires that counsel inform Bair, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Bair 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 Bair. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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