United States v. Leroy Lane , 514 F. App'x 399 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4656
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LEROY AUGUSTUS LANE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. J. Michelle Childs, District
Judge. (6:06-cr-00992-JMC-1)
Submitted: March 14, 2013 Decided: March 26, 2013
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David W. Plowden, 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Unpublished opinions are not binding precedent in this circuit.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:
Leroy Augustus Lane appeals from the 240-month
sentence imposed at his resentencing. On appeal, counsel has
filed an Anders * brief, asserting that there are no meritorious
issues for appeal but questioning whether Lane’s sentence was
reasonable. Lane has filed a pro se supplemental brief arguing
that he received ineffective assistance of counsel when his
attorney did not review the presentence report (“PSR”) with him,
failed to object to the Government’s reliance on prior charges
for which he had not been convicted, and failed to object to the
PSR’s description of his prior offenses as violent. We affirm.
We review Lane’s sentence for reasonableness under a
“deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). This review entails appellate
consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. In determining
procedural reasonableness, we consider whether the district
court properly calculated the defendant’s advisory Guidelines
range, considered the 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2012) factors, selected a sentence based on clearly erroneous
facts, or failed to explain sufficiently the selected sentence.
Id. at 49-51. If the sentence is free of significant procedural
*
Anders v. California, 386 U.S. 738 (1967).
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error, we review it for substantive reasonableness, “tak[ing]
into account the totality of the circumstances.” Id. at 51. If
the sentence is within the properly calculated Guidelines range,
we apply a presumption on appeal that the sentence is
reasonable. United States v. Mendoza-Mendoza, 597 F.3d 212, 217
(4th Cir. 2010). Such a presumption is rebutted only by showing
“that the sentence is unreasonable when measured against the
§ 3553(a) factors.” United States v. Montes-Pineda, 445 F.3d
375, 379 (4th Cir. 2006) (internal quotation marks omitted).
After review of counsel’s sentencing claim and the
remainder of the record pursuant to Anders, we conclude that the
district court did not abuse its discretion in imposing sentence
in this case. Lane did not object to the calculation of his
Guidelines range, and the district court properly calculated his
advisory Guidelines range in accordance with our remand
instructions. The court heard argument from counsel and
allocution from Lane. The court also considered the § 3553(a)
factors, explaining that a within-Guidelines sentence was
warranted in view of the nature and circumstances of Lane’s
offense conduct and Lane’s history and characteristics —
including his demonstrated unwillingness to accept
responsibility for his crime and his recidivism.
Even if we may have weighed the § 3553(a) factors
differently had we imposed sentence in the first instance, we
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defer to the district court’s decision that the 240-month
sentence achieved the purposes of sentencing in Lane’s case.
See United States v. Jeffery, 631 F.3d 669, 679 (4th Cir.)
(“[D]istrict courts have extremely broad discretion when
determining the weight to be given each of the § 3553(a)
factors.”), cert. denied, 132 S. Ct. 187 (2011). Lane thus
fails to overcome the appellate presumption that his
within-Guidelines sentence is substantively reasonable.
Accordingly, we conclude that the district court did not abuse
its discretion in imposing sentence.
Lane avers that his counsel was ineffective at the
sentencing hearing. To establish ineffective assistance of
counsel, Lane must show that: (1) counsel’s performance fell
below an objective standard of reasonableness; and (2) counsel’s
deficient performance was prejudicial. Strickland v.
Washington, 466 U.S. 668, 687 (1984). However, claims of
ineffective assistance of counsel are generally not cognizable
on direct appeal, unless counsel’s “ineffectiveness conclusively
appears from the record.” United States v. Baldovinos, 434 F.3d
233, 239 (4th Cir. 2006).
Here, the record does not conclusively demonstrate
that counsel was ineffective. As such, Lane’s claims are not
cognizable on direct appeal; instead, he can bring these claims
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in a 28 U.S.C.A. § 2255 (West Supp. 2012) proceeding where he
can further develop the record.
In accordance with Anders, we have examined the entire
record in this case and have found no meritorious issues for
review. Accordingly, we affirm Lane’s sentence. This court
requires that counsel inform Lane in writing of his right to
petition the Supreme Court of the United States for further
review. If Lane requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move this court for leave to withdraw from representation.
Counsel's motion must state that a copy thereof was served on
Lane. 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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