United States v. Danny Poston ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4583
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANNY POSTON,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:11-cr-00062-IMK-JSK-7)
Submitted: February 11, 2014 Decided: February 20, 2014
Before FLOYD and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Charles T. Berry, Fairmont, West Virginia, for Appellant. Zelda
Elizabeth Wesley, Assistant United States Attorney, Clarksburg,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Danny Poston appeals the seventy-months, within-
Guidelines sentence imposed by the district court after he pled
guilty to possession with intent to distribute in excess of
twenty-eight grams of cocaine base within 1000 feet of a
protected location, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), 860 (2012), and 18 U.S.C. § 2 (2012). On appeal,
Poston’s 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 Poston’s
sentence is reasonable and whether trial counsel was ineffective
for lodging an erroneous objection to the presentence
investigation report (“PSR”) that later had to be withdrawn.
Despite being given notice of the opportunity to do so, Poston
has not filed a pro se supplemental brief. We affirm.
Poston questions the reasonableness of his sentence.
We review a sentence for reasonableness, applying an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). In so doing, we first examine the sentence for
significant procedural error, including whether the district
court properly calculated the advisory Guidelines range,
considered the parties’ arguments in light of the 18 U.S.C.
§ 3553(a) (2012) factors, selected a sentence based on clearly
erroneous facts, and adequately explained the sentence. Gall,
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552 U.S. at 51. When considering the substantive reasonableness
of the sentence, we “take into account the totality of the
circumstances.” Id. If the sentence is within or below the
Guidelines range, we presume on appeal that the sentence is
reasonable. United States v. Yooho Weon, 772 F.3d 583, 590 (4th
Cir. 2013).
We have thoroughly reviewed the transcript of Poston’s
sentencing hearing and conclude that the district court’s
sentence is reasonable. The district court properly calculated
the advisory Guidelines range, considered the relevant § 3553(a)
factors, and tailored its sentence to Poston’s specific
circumstances. The district court thoroughly explained the
reasons for its within-Guidelines sentence, holding that
Poston’s extensive criminal history, background of drug dealing,
and evidence of continuing drug activity indicated a high risk
of recidivism, warranting a higher sentence. Because the
district court adequately explained the reasons for its
sentence, we conclude that Poston’s within-Guidelines sentence
is entitled to the presumption of reasonableness.
Lastly, Poston contends that his counsel was
ineffective for lodging an erroneous objection to the PSR and
then withdrawing the objection. Claims of ineffective
assistance of counsel “are generally not cognizable on direct
appeal.” United States v. Benton, 523 F.3d 424, 435 (4th Cir.
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2008); see United States v. King, 119 F.3d 290, 295 (4th Cir.
1997). Instead, to allow for adequate development of the
record, a defendant must ordinarily bring his claims in a 28
U.S.C. § 2255 (2012) motion. King, 119 F.3d at 295. However,
we can entertain such claims on direct appeal only if it
conclusively appears from the record that defense counsel did
not provide effective representation. Id.; United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999).
Under Strickland v. Washington, 466 U.S. 668 (1984), a
defendant must satisfy two prongs in order to prove an
ineffective assistance of counsel claim: (1) “that counsel’s
representation fell below an objective standard of
reasonableness,” and (2) that the deficient performance was
prejudicial. Id. at 687, 688; see Hill v. Lockhart, 474 U.S.
52, 59 (1985) (discussing showing of prejudice required in
context of guilty plea). Our thorough review of the record
leads us to conclude that Poston has failed to conclusively
demonstrate that his trial counsel was ineffective. We
therefore decline to address this claim on direct appeal.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious grounds for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Poston, in writing, of the right to
petition the Supreme Court of the United States for further
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review. If Poston 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 Poston.
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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