United States v. Anthony Ruffin ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4152
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY RAVON RUFFIN, a/k/a Anthony Ray Ruffin,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00304-JAB-1)
Submitted: August 29, 2012 Decided: September 11, 2012
Before WILKINSON, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Samuel A. Forehand, LAW OFFICE OF SAMUEL A. FOREHAND, P.A.,
Raleigh, North Carolina, for Appellant. Ripley Rand, United
States Attorney, Michael A. DeFranco, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Anthony Ravon Ruffin was
convicted of bank robbery, in violation of 18 U.S.C. § 2113(a)
(2006) (Count One); armed bank robbery, in violation of 18
U.S.C. § 2113(a), (d) (2006) (Count Two); brandishing a firearm
during and in relation to a crime of violence, in violation of
18 U.S.C. § 924(c)(1)(A)(ii) (2006) (Count Three); and felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) (2006) (Count Four). The district court sentenced
Ruffin to 415 months’ imprisonment: 105 months on Count Two,
plus an additional 10 months for committing the offense while on
release; 105 months on Count Four, plus an additional ten months
for committing the offense while on release, to run concurrently
with the 115-month sentence for Count Two; and 300 months on
Count Three, to run consecutively to the concurrent 115-month
terms on Counts Two and Four. In addition, the court ordered
the 415-month sentence to run consecutively to the undischarged
portion of a 322-month sentence Ruffin was serving for unrelated
convictions in the Eastern District of North Carolina. Ruffin
timely appealed.
Ruffin first seeks to have his convictions vacated
because the license of one of the Government attorneys who
prosecuted his case had been suspended. Our review of the
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record shows that Ruffin failed to establish a violation of his
rights or prejudice warranting vacatur of his convictions.
Next, Ruffin contends that the district court erred by
failing to consider U.S. Sentencing Guidelines Manual
§ 5G1.3(c), p.s. (2010), when it ordered the concurrent 115-
month prison terms on Counts Two and Four to run consecutive to,
rather than concurrent with, the undischarged portion of the
sentence imposed on unrelated offenses in the Eastern District
of North Carolina. Ordinarily, we review legal questions
concerning the application of the Sentencing Guidelines de novo.
United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010).
However, where a defendant argues that the district court erred
in its consideration of USSG § 5G1.3, but he did not invoke the
Guideline or argue that he was entitled to a concurrent sentence
in the district court, we review only for plain error. United
States v. Rouse, 362 F.3d 256, 260 (4th Cir. 2004). Here,
Ruffin requested that the district court consider running his
concurrent 115-month terms on Counts Two and Four concurrently
to any other sentence, but he did not mention USSG § 5G1.3. We
conclude that Ruffin has not demonstrated error under either
standard of review.
Although the district court did not specifically
mention USSG § 5G1.3(c) at the sentencing hearing, the provision
was cited in the presentence report (“PSR”), where the probation
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officer recommended that a consecutive sentence be imposed, and
the court considered the PSR, as well as requests by counsel for
and against a consecutive sentence. Accordingly, we can fairly
infer that the district court considered USSG § 5G1.3(c), and
Ruffin has not shown any error. See United States v. Davis, 53
F.3d 638, 642 (4th Cir. 1995) (“A [district] court need not
engage in ritualistic incantation in order to establish its
consideration of a legal issue. It is sufficient if . . . the
district court rules on issues that have been fully presented
for determination. Consideration is implicit in the court’s
ultimate ruling.”).
Finally, Ruffin argues that he was denied effective
assistance of counsel at sentencing because his attorney failed
to argue that § 5G1.3(c) supported running his concurrent terms
on Counts Two and Four concurrently with his undischarged
sentence in the Eastern District of North Carolina. Claims of
ineffective assistance of counsel should be raised in a 28
U.S.C.A. § 2255 (West Supp. 2012) motion rather than on direct
appeal, unless the appellate record conclusively demonstrates
ineffective assistance. United States v. Benton, 523 F.3d 424,
435 (4th Cir. 2008). Because the record here does not
conclusively show that counsel was constitutionally ineffective,
we decline to review this claim on direct appeal.
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Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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