United States v. Jarvis Cunningham , 588 F. App'x 235 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4463
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JARVIS SENTIEL CUNNINGHAM,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Timothy M. Cain, District
Judge. (7:13-cr-00507-TMC-1)
Submitted: December 16, 2014 Decided: December 18, 2014
Before DUNCAN and DIAZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Benjamin T. Stepp, Assistant Federal Public Defender,
Greenville, South Carolina, for Appellant. Carrie Fisher
Sherard, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jarvis Sentiel Cunningham pled guilty, without a plea
agreement, to possession with intent to distribute and
distribution of a quantity of cocaine base, in violation of 21
U.S.C. § 841(a)(1) (2012). The district court sentenced
Cunningham to 151 months’ imprisonment, the bottom of his
advisory Guidelines range. On appeal, counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious grounds for appeal but questioning
whether Cunningham’s sentence is reasonable. Cunningham has
filed a pro se supplemental brief, challenging his conviction
and sentence. We affirm.
We review Cunningham’s sentence for reasonableness
“under a deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41 (2007). A sentence is
procedurally reasonable if the court properly calculates the
defendant’s advisory Guidelines range, gives the parties an
opportunity to argue for an appropriate sentence, considers the
18 U.S.C. § 3553(a) (2012) factors, does not rely on clearly
erroneous facts, and sufficiently explains the selected
sentence. Id. at 49-51. After reviewing the sentencing
transcript pursuant to Anders, we conclude that Cunningham’s
sentence is procedurally reasonable. Cunningham has also failed
to rebut the presumption that his within-Guidelines sentence is
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substantively reasonable. See United States v. Louthian, 756
F.3d 295, 306 (4th Cir.) (explaining presumption), cert. denied,
135 S. Ct. 421 (2014).
Cunningham argues in his pro se supplemental brief
that counsel rendered ineffective assistance by misadvising him
of the potential penalties. 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
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 Cunningham’s claim
should be raised, if at all, in a § 2255 motion.
Finally, Cunningham asserts in his pro se supplemental
brief that his conviction violated the Constitution because his
drug dealing did not affect interstate commerce. We conclude
that Cunningham’s conviction was well within the bounds of the
Constitution and reject this claim. See United States v.
Leshuk, 65 F.3d 1105, 1111-12 (4th Cir. 1995) (rejecting
Commerce Clause challenge to § 841(a)(1)).
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious grounds for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Cunningham, in writing,
of the right to petition the Supreme Court of the United States
for further review. If Cunningham 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 Cunningham. 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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