United States v. Shawn Davis ( 2012 )

Filed: December 6, 2012
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4953
(4:11-cr-00416-TLW-5)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHAWN JERMAINE DAVIS, a/k/a Big Boy,
Defendant - Appellant.
O R D E R
The Court amends its opinion filed October 2, 2012, as
follows:
On page 5, section IV, first paragraph, lines 3 and 4,
-- the sentence “Counsel’s motion to withdraw is denied at this
time” is deleted; and the name “Pratt” in the final line is
corrected to read “Davis.”
For the Court – By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4953
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SHAWN JERMAINE DAVIS, a/k/a Big Boy,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:11-cr-00416-TLW-5)
Submitted: September 17, 2012 Decided: October 2, 2012
Before MOTZ, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John M. Ervin, III, Darlington, South Carolina, for Appellant.
Alfred William Walker Bethea, Jr., Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawn Jermaine Davis pled guilty in accordance with a
written plea agreement to conspiracy to distribute five
kilograms or more of cocaine, 280 grams or more of cocaine base,
fifty kilograms or more of marijuana, and a quantity of
methamphetamine, in violation of 21 U.S.C. § 846 (2006). He was
sentenced to 264 months in prison. Davis now appeals. His
attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), raising two issues but
concluding that there are no meritorious issues for appeal.
Davis has filed a pro se supplemental brief raising an
additional issue. We affirm.
I
In the Anders brief, counsel questions whether the
district court complied with Fed. R. Crim. P. 11. Our review of
the transcript of the Rule 11 proceeding discloses full
compliance with the Rule. Further, the record reflects that
Davis’ plea was knowing and voluntary and that there was a
factual basis for the plea. We therefore affirm the conviction.
II
Counsel next questions whether the sentence is
reasonable. Davis’ advisory Guidelines range was 262-327
2
months. There were no objections to the presentence
investigation report, which the court adopted. In imposing
sentence, the district court considered the Guidelines range,
the 18 U.S.C.A. § 3553(a) (West Supp. 2011) factors, and the
arguments of counsel. * Further, the court mentioned that: Davis’
offense was both significant and serious; he had an extensive
criminal history, including several drug convictions and a
conviction for a violent offense; he had served little time for
his past offenses; and he had shown no respect for the law.
Weighing in Davis’ favor was the fact that he had cooperated
with the United States.
We review a sentence for reasonableness, applying an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of the sentence. Id.We first determine whether the district court correctly
calculated the defendant’s advisory Guidelines range, considered
the applicable § 3553(a) factors, analyzed the arguments
presented by the parties, and sufficiently explained the
selected sentence. United States v. Lynn, 592 F.3d 572, 575-76
(4th Cir. 2010). With respect to the explanation of the
sentence, the court “must place on the record an individualized
*
Davis declined allocution.
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assessment based on the particular facts of the case before it.”
United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). If
the sentence is free of procedural error, we then review the
substantive reasonableness of the sentence. Lynn, 592 F.3d at
576. This review requires us to consider the totality of the
circumstances and to decide “whether the sentence was
reasonable—i.e., whether the [d]istrict [j]udge abused his
discretion in determining that the § 3553(a) factors supported”
the selected sentence. Gall, 552 U.S. at 56.
We conclude that the district court did not abuse its
discretion in imposing the 264-month sentence. The court fully
complied with the required procedures, properly calculating the
Guidelines range, considering the arguments presented, providing
an individualized assessment, and taking into account the
§ 3553(a) factors. The sentence, which falls within the
Guidelines range, is presumptively reasonable, see United
States v. Go, 517 F.3d 216, 218 (4th Cir. 2008), and Davis did
not rebut this presumption.
III
In his pro se brief, Davis claims that his attorney
was ineffective. Claims of ineffective assistance of counsel
generally are not cognizable on direct appeal unless the record
conclusively establishes counsel’s “objectively unreasonable
4
performance” and resulting prejudice. United States v. Benton,
523 F.3d 424, 435 (4th Cir. 2008). Rather, to allow for
adequate development of the record, a defendant ordinarily must
bring an ineffectiveness claim in a 28 U.S.C.A. § 2255 (West
Supp. 2011) motion. United States v. Baptiste, 596 F.3d 214,
216 n.1 (4th Cir. 2010). After reviewing the record, especially
the transcript of sentencing, we conclude that ineffectiveness
does not conclusively appear on the record. We therefore
decline to address the merits of the claim.
IV
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Davis’ conviction and sentence. This court
requires that counsel inform Davis, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Davis 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 Davis.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
5
before the court and argument would not aid the decisional
process.
AFFIRMED
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