United States v. Demetrius Thomas , 602 F. App'x 570 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4656
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMETRIUS D. THOMAS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:14-cr-00045-1)
Submitted: February 18, 2015 Decided: February 24, 2015
Before MOTZ and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Sebastian M. Joy, JOY LAW OFFICE, Catlettsburg, Kentucky, for
Appellant. Steven Loew, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demetrius D. Thomas pled guilty, pursuant to a plea
agreement, to distribution of heroin, in violation of 21 U.S.C.
§ 841(a)(1) (2012). The court sentenced Thomas to 120 months’
imprisonment. 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 the
sentence is reasonable. Thomas has filed a pro se supplemental
brief, claiming that his guilty plea was not made knowingly and
requesting that we review the record to determine whether the
sentence is reasonable, whether counsel’s assistance was
ineffective, and whether the career offender designation was
proper. The Government has not filed a brief. Having reviewed
the record, we affirm.
Thomas argues that he did not knowingly enter into the
plea agreement, claiming that he lacked sufficient time and
knowledge to understand the plea agreement. Where a defendant
has not moved to withdraw his guilty plea in the district court,
the Fed. R. Crim. P. 11 plea colloquy is reviewed for plain
error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir.
2002). Here, the district court conducted a thorough plea
colloquy, fully satisfying the requirements of Rule 11 and
ensuring that Thomas’ plea was knowing, voluntary, and supported
by a sufficient factual basis. See United States v. DeFusco,
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949 F.2d 114, 116 (4th Cir. 1991). Thomas’ sworn statements at
the plea colloquy belie his claim that his guilty plea was not
made knowingly and voluntarily. Thus, we find Thomas’ attacks
on the validity of his guilty plea to be without merit.
Counsel, in the Anders brief, and Thomas contend that
Thomas’ sentence was too severe in light of his personal
characteristics and the small quantity of controlled substances
involved in this offense and his prior offenses. This court
reviews a sentence for reasonableness, applying “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 Sentencing Guidelines range, gave the
parties an opportunity to argue for an appropriate sentence,
considered the 18 U.S.C. § 3553(a) (2012) factors, and
sufficiently explained the selected sentence. Id. at 49-51.
If there are no significant procedural errors, we then
consider the substantive reasonableness of a sentence,
evaluating “the totality of the circumstances, including the
extent of any variance from the Guidelines range.” Id. at 51.
A sentence is presumptively reasonable if it is within or below
the Guidelines range, and this “presumption can only be rebutted
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by showing that the sentence is unreasonable when measured
against the . . . § 3553(a) factors.” United States v.
Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421 (2014).
We conclude that the district court satisfied the
procedural requirements by correctly calculating Thomas’
Guidelines range; considering the parties’ arguments, Thomas’
allocution, and the 18 U.S.C. § 3553(a) (2012) factors; and
providing an individualized assessment fully grounded in those
factors. As to substantive reasonableness, we conclude that
Thomas has not rebutted the presumption of reasonableness
accorded to his below-Guidelines sentence. To the extent Thomas
attacks the district court’s failure to give more weight to his
circumstances, we note that the court considered Thomas’ oral
and written arguments, but merely declined to vary the sentence
to the extent requested by Thomas. Such a determination is
within the discretion of the court when sentencing a criminal
defendant and is reasonable.
Thomas also contends that counsel provided ineffective
assistance. 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.
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§ 2255 (2012), in order to allow for sufficient development of
the record. United States v. Baptiste, 596 F.3d 214, 216 n.1
(4th Cir. 2010). Because there is no evidence of ineffective
assistance of counsel on the face of the record, we conclude
that this claim should be raised, if at all, in a § 2255 motion.
Additionally, we have reviewed the other arguments Thomas raises
in his pro se supplemental brief and conclude that they are
without merit.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Thomas’ conviction and sentence. This court
requires that counsel inform Thomas, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Thomas 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 Thomas.
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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