United States v. Kai-Ree Mack , 696 F. App'x 657 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4065
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KAI-REE KENDRELL DWAYNE MACK, a/k/a Kai-Ree Shangora Mack,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Anderson. Henry M. Herlong, Jr., Senior District Judge. (8:15-cr-00781-HMH-1)
Submitted: August 24, 2017 Decided: August 29, 2017
Before GREGORY, Chief Judge, and DUNCAN and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lora Blanchard, Assistant Federal Public Defender, Greenville, South Carolina, for
Appellant. Elizabeth Jean Howard, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kai-Ree Kendrell Dwayne Mack appeals his conviction and 46-month sentence
following his guilty plea for possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1) (2012). On appeal, counsel for Mack filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious issues
for appeal, but questioning the reasonableness of Mack’s sentence. Mack has filed a pro
se supplemental brief asserting a claim of ineffective assistance of counsel and
challenging certain statements made by the sentencing court. The Government has
elected not to respond. We affirm.
We review a sentence for reasonableness, applying a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51-52 (2007). We “must first
ensure that the district court committed no significant procedural error,” such as
improperly calculating the Sentencing Guidelines range, failing to consider the 18 U.S.C.
§ 3553(a) (2012) sentencing factors, or inadequately explaining the sentence imposed.
Id.The district court correctly calculated the Guidelines range and, concluding that
this was “a typical case contemplated by the guidelines,” imposed a sentence at the high
end of the range. The court emphasized that Mack was “dangerous,” and, during a
colloquy with Mack, expressed concern over the seriousness of the offense. See 18
U.S.C. § 3553(a)(2)(A), (C) (2012). We conclude that Mack’s sentence was procedurally
reasonable.
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Having found no procedural error, we examine the substantive reasonableness of
Mack’s sentence under “the totality of the circumstances.” Gall, 552 U.S. at 51. The
sentence imposed must be “sufficient, but not greater than necessary,” to satisfy the goals
of sentencing. 18 U.S.C. § 3553(a). We presume on appeal that a within-Guidelines
sentence is substantively reasonable. United States v. Louthian, 756 F.3d 295, 306 (4th
Cir. 2014). Here, by not “showing that the sentence is unreasonable when measured
against the . . . § 3553(a) factors,” Mack has failed to rebut this presumption. Id.
Unless an attorney’s ineffectiveness conclusively appears on the face of the
record, ineffective assistance claims generally are not 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 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 reveals no conclusive evidence that counsel was
ineffective, Mack’s claim 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 Mack’s conviction and
sentence. This court requires that counsel inform Mack, in writing, of the right to petition
*
Mack also disputes comments made by the district court at sentencing
concerning what Mack might have done with the firearm he unlawfully possessed.
However, Mack does not challenge the legal sufficiency of his conviction and, in any
event, by pleading guilty, he “admit[ted] all of the factual allegations made in the
indictment, and waive[d] all non-jurisdictional defects, including the right to contest the
factual merits of the charge[].” United States v. Gosselin World Wide Moving, N.V., 411
F.3d 502, 515 (4th Cir. 2005) (citation and internal quotation marks omitted).
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the Supreme Court of the United States for further review. If Mack 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 Mack.
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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