United States v. Olanitan Olaniyi ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4621
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OLANITAN MICHAEL OLANIYI, a/k/a Richard Allman, a/k/a Thomas
Duval, a/k/a Gabriel Palmer, a/k/a Michael Salman, a/k/a
Michael Stanley,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. W. Earl Britt,
Senior District Judge. (4:13-cr-00072-BR-1)
Submitted: March 17, 2015 Decided: March 19, 2015
Before WILKINSON and KING, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joseph A. DiRuzzo, III, FUERST ITTLEMAN DAVID & JOSEPH, PL,
Miami, Florida, 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Unpublished opinions are not binding precedent in this circuit.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:
Olanitan Michael Olaniyi appeals his convictions and 87-
month sentence imposed by the district court following his
guilty plea to conspiracy to commit mail, wire, and bank fraud,
in violation of 18 U.S.C. § 1349 (2012), and aggravated identity
theft, and aiding and abetting the same, in violation of 18
U.S.C. §§ 1028A, 2 (2012). Olaniyi’s counsel has filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967),
stating that, in counsel’s view, there are no meritorious issues
for appeal. Olaniyi filed a pro se supplemental brief,
challenging the reasonableness of his sentence and asserting
that he was denied effective assistance of counsel. We affirm.
We review a sentence for procedural and substantive
reasonableness under a deferential abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). We must first
ensure that the district court did not commit any “significant
procedural error,” such as failing to properly calculate the
applicable Sentencing Guidelines range, failing to consider the
18 U.S.C. § 3553(a) (2012) sentencing factors, or failing to
adequately explain the sentence. Id. If we find the sentence
procedurally reasonable, we then consider its substantive
reasonableness. Id. at 328. We presume on appeal that a
sentence within the properly calculated Guidelines range is
substantively reasonable. United States v. Abu Ali, 528 F.3d
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210, 261 (4th Cir. 2008). Such a presumption is rebutted only
when the defendant shows “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).
Upon review, we discern no procedural or substantive
sentencing error by the district court. The district court
correctly calculated Olaniyi’s advisory Guidelines range, heard
argument from counsel, provided Olaniyi an opportunity to
allocute, and considered the § 3553(a) sentencing factors. We
have reviewed the record and conclude that Olaniyi’s within-
Guidelines sentence is both procedurally and substantively
reasonable.
Turning to Olaniyi’s ineffective assistance of counsel
claims, unless an attorney’s ineffectiveness conclusively
appears on the face of the record, such claims are not generally
addressed on direct appeal, United States v. Benton, 523 F.3d
424, 435 (4th Cir. 2008), but rather 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 States v.
Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). Because the
record does not conclusively establish ineffective assistance of
counsel, we conclude that these claims should be raised, if at
all, in a § 2255 motion.
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Olaniyi’s conviction and sentence.
This court requires that counsel inform Olaniyi, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Olaniyi 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 Olaniyi. 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
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