United States v. Amlee , 305 F. App'x 146 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4156
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KIRBY LOREN AMLEE,
Defendant - Appellant.
No. 08-4157
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KIRBY LOREN AMLEE,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00376-NCT-1; 1:06-cr-00424-NCT-1)
Submitted: September 29, 2008 Decided: December 31, 2008
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gregory Davis, Assistant Federal Public Defender, Winston-Salem,
North Carolina, for Appellant. Michael Francis Joseph, Angela
Hewlett Miller, Assistant United States Attorneys, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Kirby Loren Amlee pled guilty, pursuant to a written plea
agreement, to two counts of possession of firearms in commerce
after having been dishonorably discharged from the Armed Forces, in
violation of 18 U.S.C. §§ 922(g)(6), 924(a)(2) (2000), and was
sentenced to 46 months imprisonment. Amlee’s counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that, in his view, there are no meritorious issues for
appeal, but questioning whether the district court erred in
sentencing Amlee. Amlee has filed a supplemental pro se brief
addressing these issues and asserting that he received ineffective
assistance of counsel. Finding no error, we affirm.
Because Amlee did not move in the district court to
withdraw his guilty plea, any challenge to the propriety of the
Fed. R. Crim. P. 11 hearing is reviewed for plain error. United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Before
accepting a plea, the district court must ensure that the defendant
understands the nature of the charges against him, the mandatory
minimum and maximum sentences, and various other rights, so it is
clear the defendant is knowingly and voluntarily entering his plea.
The court also must determine whether there is a factual basis for
the plea. Fed. R. Crim. P. 11(b); United States v. DeFusco, 949
F.2d 114, 116 (4th Cir. 1991). Our review of the plea hearing
transcript reveals that the district court conducted a thorough
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Rule 11 colloquy, ensuring that Amlee’s plea was knowing and
voluntary and that there was an independent factual basis for the
plea.
This court reviews the sentence imposed by the district
court for reasonableness, applying an abuse of discretion standard.
Gall v. United States, 128 S. Ct. 586, 597 (2007); see also United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). When
sentencing a defendant, a district court must: (1) properly
calculate the guideline range; (2) treat the guidelines as
advisory; (3) consider the factors set out in 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2008); and (4) explain its reasons for selecting
a sentence. Pauley, 511 F.3d at 473. We presume that a sentence
within the properly calculated sentencing guidelines range is
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007); see also Rita v. United States, 127 S. Ct. 2456, 2462-69
(2007) (upholding application of rebuttable presumption of
correctness of within-guideline sentence). Here, the district
court followed the appropriate procedures in sentencing Amlee, and
we find no abuse of discretion in its imposition of the 46-month
sentence. We therefore find that Amlee’s sentence is reasonable.
Amlee contends that the district court erred by failing
to downwardly depart from the guideline range pursuant to U.S.
Sentencing Guidelines Manual § 5K1.13 (2007), based on his
diminished capacity. This ruling is not reviewable unless the
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district court was under the mistaken impression that it lacked the
authority to depart. United States v. Brewer, 520 F.3d 367, 371
(4th Cir. 2008) (no authority to review denial of downward
departure, even after Booker); see also United States v. Cooper,
437 F.3d 324, 333 (3d Cir. 2006) (collecting cases declining to
review a district court’s decision not to depart, even after
Booker). Here, the district court clearly understood its authority
to depart; therefore, this claim is not cognizable on appeal.
Amlee also asserts a challenge to the effectiveness of
his trial attorney. Claims of ineffective assistance of counsel
are not cognizable on direct appeal unless the record conclusively
establishes ineffective assistance. United States v. Richardson,
195 F.3d 192, 198 (4th Cir. 1999). To allow for adequate
development of the record, claims of ineffective assistance
generally should be brought in a 28 U.S.C. § 2255 (2000) motion.
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). We find
that the record does not conclusively establish ineffective
assistance.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Amlee’s convictions and sentence. This court
requires that counsel inform Amlee, in writing, of his right to
petition the Supreme Court of the United States for further review.
If Amlee requests that a petition be filed, but counsel believes
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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 Amlee. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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