United States v. Billy Burgess , 519 F. App'x 790 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4592
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BILLY CHARLES BURGESS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:08-cr-00341-D-1)
Submitted: March 28, 2013 Decided: April 1, 2013
Before NIEMEYER, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Neal Gary Rosensweig, NEAL ROSENSWEIG, P.A., Hollywood, Florida,
for Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Billy Charles
Burgess pled guilty to receiving child pornography in violation
of 18 U.S.C.A. § 2252(a)(2) (West Supp. 2012). The district
court sentenced him to 258 months’ imprisonment. Burgess
appeals. His counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there are no
meritorious grounds for appeal, but questioning whether Burgess’
guilty plea was valid and whether the sentence imposed is
reasonable. Burgess filed a pro se supplemental brief
challenging the reasonableness of his sentence in light of the
Government’s motion for a downward departure due to his
substantial assistance and asserting that trial and appellate
counsel provided ineffective assistance. We affirm Burgess’
conviction and sentence.
Because Burgess did not contest the Fed. R. Crim. P.
11 proceedings in the district court, we review his challenge to
the validity of his plea for plain error. See Fed. R. Crim. P.
52(b); United States v. Vonn, 535 U.S. 55, 59 (2002); United
States v. Mastrapa, 509 F.3d 652, 657 (4th Cir. 2007). We have
reviewed the record and conclude that Burgess has not shown any
plain error by the district court.
We review Burgess’ sentence for reasonableness under a
“deferential abuse-of-discretion standard.” Gall v. United
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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
error, we review it for substantive reasonableness, “tak[ing]
into account the totality of the circumstances.” Id. at 51. We
presume that a sentence within or below a properly calculated
Guidelines range is substantively reasonable. United States v.
Susi, 674 F.3d 278, 289 (4th Cir. 2012).
After review of counsel’s sentencing challenge,
Burgess’ claim that the court failed to note on the record the
specific allowance given for his assistance to the Government,
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. The district court properly calculated
Burgess’ advisory Guidelines range and heard argument from
counsel and allocution from Burgess. The court also considered
the § 3553(a) factors, explaining that a within-Guidelines
sentence was warranted in view of the nature and circumstances
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of Burgess’ offense conduct and Burgess’ history and
characteristics. Although the court afforded Burgess some
credit for his substantial assistance to the Government, the
court noted Burgess’ recidivism in exploiting children, the fact
that he minimized his conduct and expressed no remorse for it,
and the need to protect the public from his further conduct.
The court determined that, even considering Burgess’ assistance
to the Government, a 258-month sentence was appropriate.
Reviewing the reasonableness of this sentence, we defer to the
district court’s decision that this sentence achieved the
purposes of sentencing in Burgess’ 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). Burgess has failed 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.
Burgess avers that his trial and appellate counsel
provided ineffective assistance. To establish ineffective
assistance of counsel, Burgess 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,
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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, Burgess’ claims are not
cognizable on direct appeal; instead, he can bring these claims
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 Burgess’ conviction and sentence.
We deny counsel’s motion to withdraw. This court requires that
counsel inform Burgess, in writing, of his right to petition the
Supreme Court of the United States for further review. If
Burgess requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may renew
his motion at that time. Counsel’s motion must state that a
copy thereof was served on Burgess. 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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