United States v. Reginald Hunter , 589 F. App'x 196 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4490
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REGINALD ANTHONY HUNTER,
Defendant - Appellant.
No. 14-4491
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REGINALD ANTHONY HUNTER,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:12-cr-00289-MOC-1; 3:00-cr-00111-MOC-1)
Submitted: January 15, 2015 Decided: January 20, 2015
Before WILKINSON and NIEMEYER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Ross Hall Richardson, Executive Director, Ann L. Hester,
Assistant Federal Defender, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Pursuant to a plea agreement, Reginald Anthony Hunter
pled guilty to one count of bank robbery and one count of using
and carrying a firearm during and in relation to a crime of
violence. The district court sentenced him to 262 months’
imprisonment. At the time he committed these offenses, Hunter
was on supervised release for a 2001 conviction for two counts
of armed bank robbery. Based on Hunter’s admission to violating
the terms of his supervision, the court revoked his supervised
release and imposed a 22-month sentence, to run concurrently
with the 262-month sentence.
The district court consolidated Hunter’s appeals from
the criminal judgment and the revocation judgment. Hunter’s
attorney 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, but questioning whether the
court erred by classifying Hunter as a career offender on both
the bank robbery and the firearm charge and whether the 22-month
sentence for violation of supervised release was plainly
unreasonable. Hunter filed a pro se supplemental brief,
asserting that district court misunderstood its authority to
impose a variance sentence, that he was excluded from a sidebar
conference during sentencing, and that counsel provided
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ineffective assistance prior to and during the plea hearing.
Concluding that the district court did not err, we affirm.
Hunter first contends that the court erred by
classifying him as a career offender with respect to the firearm
charge. Hunter was 49 years old at the time of the commission
of the instant offenses. He had at least two prior convictions
for bank robbery, committed in 1993 and 2000, and the instant
offense—use of a firearm in the commission of a crime of
violence—constitutes a crime of violence. Thus, he was properly
classified as a career offender for the firearm charge, as well
as the bank robbery. See U.S. Sentencing Guidelines Manual
§ 4B1.1(c)(2) (2013). In determining the applicable Guidelines
range, the district court appropriately applied USSG
§ 4B1.1(c)(2), and determined that the applicable combined
Guideline range for the two convictions is 262 to 327 months.
See USSG § 4B1.1(c)(3). We find no error by the court in making
this determination.
Hunter contends, in his pro se brief, that he was
excluded from a sidebar conference and that the district court
was mistaken concerning its authority to impose a downward
variance sentence. However, the sidebar was on the record and
was merely to consult as to the appropriate application of the
Guidelines. Also, the court acknowledged its authority to
impose a variant sentence but, on consideration of the
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sentencing factors, 18 U.S.C. § 3553(a) (2012), determined that
a within-Guidelines range sentence was appropriate. We find no
abuse of discretion by the court in this determination.
Hunter next contends that the 22-month sentence
imposed upon revocation of his supervised release was plainly
unreasonable. Upon Hunter’s admission to a Grade A violation of
his supervised release, the court appropriately revoked his
supervision. The Guidelines policy statement provides for a 33
to 41 month imprisonment term, USSG § 7B1.4 p.s. However, the
statutory maximum revocation sentence was two years. Because
Hunter had served two months on a prior revocation sentence, his
imprisonment term was limited to 22 months. The court
determined that 22 months was an appropriate term, and ordered
the revocation sentence to run concurrently with the 262 months
imposed for the new criminal conduct. This sentence is within
the prescribed statutory range and is not plainly unreasonable.
United States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006).
Accordingly, we affirm the revocation sentence.
Finally, we decline to reach Hunter’s claims of
ineffective assistance of counsel. Unless an attorney’s
ineffectiveness conclusively appears on the face of the record,
ineffective assistance claims are not generally addressed on
direct appeal. United States v. Benton, 523 F.3d 424, 435 (4th
Cir. 2008). Instead, such claims should be raised in a motion
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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 there
is no conclusive evidence of ineffective assistance of counsel
on the face of the record, we conclude that these claims should
be raised, if at all, in a § 2255 motion.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Hunter’s conviction and 262-month
sentence, as well as his 22-month revocation judgment. This
court requires that counsel inform Hunter, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Hunter 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 Hunter. 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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