United States v. Keisha Sims ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4422
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEISHA MONIQUE SIMS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, Senior
District Judge. (3:09-cr-00867-CMC-1)
Submitted: November 21, 2013 Decided: November 25, 2013
Before KING, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Leslie T. Sarji, SARJI LAW FIRM, LLC, Charleston, South
Carolina, for Appellant. Tommie DeWayne Pearson, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keisha Sims appeals from the revocation of her
supervised release and resulting eight-month sentence. Counsel
has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), stating that there are no meritorious issues
for appeal but raising whether the sentence imposed was
reasonable and whether Sims received ineffective assistance of
counsel when counsel allegedly did not advise Sims that she
could cure her violation for being in arrears on restitution by
paying the arrearage. Sims has not filed a pro se supplemental
brief, and the Government declined to file a brief. Finding no
error, we affirm.
Sims questions the reasonableness of her eight-month
revocation sentence. The district court has broad discretion to
impose a sentence upon revoking a defendant’s supervised
release. United States v. Thompson, 595 F.3d 544, 547 (4th Cir.
2010). Thus, this court will affirm a sentence imposed after
revocation of supervised release if it is within the governing
statutory range and not plainly unreasonable. United States v.
Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). Before
determining whether the sentence is “plainly unreasonable” we
must decide whether it is unreasonable. Id. at 438. In doing
so, the court “follow[s] generally the procedural and
2
substantive considerations” used in reviewing original
sentences. Id.
A sentence or revocation is procedurally reasonable if
the district court has considered the policy statements
contained in Chapter 7 of the Sentencing Guidelines and the
applicable 18 U.S.C. § 3553(a) (2012) factors, Crudup, 461 F.3d
at 440, and has adequately explained the sentence chosen, though
it need not explain the sentence in as much detail as when
imposing the original sentence. Thompson, 595 F.3d at 547. A
sentence is substantively reasonable if the district court
states a proper basis for its imposition of a sentence up to the
statutory maximum. Crudup, 461 F.3d at 440. If, after
considering the above, the appeals court decides that the
sentence is not unreasonable, it should affirm. Id. at 439. In
this initial inquiry, the court takes a more deferential posture
concerning issues of fact and the exercise of discretion than it
does applying the reasonableness review to post-conviction
Guidelines sentences. United States v. Moulden, 478 F.3d 652,
656 (4th Cir. 2007). Only if this court finds the sentence
unreasonable must the court decide whether it is “plainly” so.
Id. at 657.
Under this court’s deferential standard of review,
Sims’ sentence is not plainly unreasonable. A review of the
record establishes that the district court considered the
3
advisory Guidelines range of six to twelve months. Furthermore,
the district court drew upon specific § 3553(a) factors in
determining the proper sentence, and noted that it believed that
Sims could not comply with supervised release. Thus, we
conclude that Sims’ eight-month revocation sentence was not
unreasonable, nor was it plainly so.
Sims also claimed that she did not receive effective
assistance of counsel because counsel allegedly did not advise
her that she could cure her violation for being in arrears on
restitution by paying the arrearage. Claims of ineffective
assistance of counsel are generally not cognizable on direct
appeal unless the record conclusively establishes counsel’s
“objectively unreasonable performance” and resulting prejudice.
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).
Instead, ineffective assistance claims are most appropriately
pursued in 28 U.S.C.A. § 2255 (West Supp. 2013) proceedings.
See United States v. Baptiste, 596 F.3d 214, 216 n.1
(4th Cir. 2010).
We determine that the limited record before this court
fails to conclusively establish the ineffectiveness of Sims’
counsel. Although we are not conclusively deciding the issue,
even if Sims was not appropriately counseled on the restitution
arrearage issue, she still was in violation of her supervised
release on two other Class C violations. Therefore, she has not
4
established prejudice. Accordingly, we decline to consider
Sims’ ineffective assistance claim at this time.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the revocation of Sims’ supervised release
and her sentence. This court requires that counsel inform Sims,
in writing, of the right to petition the Supreme Court of the
United States for further review. If Sims 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 Sims. 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
5