United States v. Vance , 290 F. App'x 532 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4785
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JACK EARL VANCE,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (2:05-cr-00043-REM)
Submitted: July 3, 2008 Decided: August 1, 2008
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joseph A. Wallace, Elkins, West Virginia, for Appellant. Sharon L.
Potter, United States Attorney, Shawn Angus Morgan, Assistant
United States Attorney, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In this appeal filed pursuant to Anders v. California,
386 U.S. 738 (1967), Jack Earl Vance appeals his conviction and the
eighty-seven month sentence he received after being found guilty of
traveling in interstate commerce for the purpose of engaging in a
sexual act with a person under the age of eighteen, in violation of
18 U.S.C.A. § 2423(b) (West 2000 & Supp. 2008), and knowingly
transporting someone under the age of eighteen in interstate
commerce with intent to engage in a sexual activity, in violation
of 18 U.S.C.A. § 2423(a) (West 2000 & Supp. 2008). We have
reviewed the record and Vance’s contentions and, finding no error,
we affirm.
Taken in the light most favorable to the Government,
Evans v. United States, 504 U.S. 255, 257 (1992), Glasser v. United
States, 315 U.S. 60, 80 (1942), the evidence presented at trial
established the following facts. Vance began having an intimate,
sexual relationship with Jane Doe in November 2002.* At that time,
Doe was thirteen years-old, while Vance was thirty-five. Doe
documented her relationship with Vance by making notations in her
calendar, which included descriptions of the couple’s various sex
acts. In the Spring of 2005, Doe’s mother discovered Doe’s
*
We have used a pseudonym to protect the identity of the
victim in this case.
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calendar, and in April 2005, the Does filed a criminal complaint
against Vance.
With criminal charges pending in West Virginia, Vance and
Doe left the state for Virginia, where they planned to be married.
This, Vance believed, would force West Virginia authorities to
forego prosecuting him. On August 23, 2005, Vance drove himself
and Doe to Harrisonburg, Virginia. Once in Harrisonburg, Vance
checked into a motel, where Vance and Doe engaged in sexual
intercourse. At the time of this trip, Doe was fifteen years-old.
Vance and Doe returned to West Virginia approximately ten
days later, and shortly thereafter, Vance was indicted on the
instant charges. At trial, Doe testified against Vance, stating
that she and Vance had sexual intercourse while in Harrisonburg.
The jury convicted Vance on both charges against him, and Vance was
sentenced to eighty-seven months’ imprisonment. This appeal timely
followed.
I. Assignment of Trial Error
Vance raises six issues on appeal. First, he asserts the
court erred in prohibiting the defense from introducing evidence to
establish Doe purchased a pregnancy test while in Harrisonburg.
However, the record belies this claim, as Doe herself testified
regarding the purchase of a pregnancy test. Accordingly, Vance’s
contention that the district court improperly excluded this
evidence lacks merit.
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Vance next argues the audiotape recording of a telephone
conversation between Vance and Doe was illegally obtained, because
the recording device was not properly registered. There is simply
no basis in the record to support this contention. Vance did not
object to the proffer of the recording or present any evidence to
demonstrate the recording device was used improperly.
Vance next contends that his trial attorney was
ineffective in his representation of Vance. However, unless an
attorney’s ineffectiveness is apparent on the face of the record,
ineffective assistance claims are not generally addressed on direct
appeal. United States v. James, 337 F.3d 387, 391 (4th Cir. 2003);
United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999)
(providing standard and noting that ineffective assistance of
counsel claims generally should be raised by motion under 28 U.S.C.
§ 2255 (2000)). The record in this case falls far short of this
exacting standard. Accordingly, this claim fails.
Vance next maintains the West Virginia state police
threatened various witnesses in his case. As Vance presents no
proof to support this conclusory accusation, we reject this claim
without further discussion.
Finally, Vance asserts the district court erred in
denying his motions for appointment of a new attorney and in
refusing to order West Virginia’s Department of Corrections to
provide him with certain medical treatment. First, the appointment
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of a particular attorney is a matter entrusted to the district
court’s discretion, and a defendant may demand a new lawyer only
“for good cause.” United States v. Gallop, 838 F.2d 105, 108 (4th
Cir. 1988). Because Vance failed to establish good cause to
support his requests for a new attorney, the district court was
well within its discretion to deny his motions. We decline to
consider Vance’s claim of inadequate medical care, because it is
unrelated to his conviction or sentence.
II. Sentencing
Although Vance does not lodge a specific challenge to his
sentence, because this appeal is before us on Anders review, we
will review Vance’s sentence for reasonableness.
As recently determined by the Supreme Court,
“[r]egardless of whether the sentence imposed is inside or outside
the Guidelines range, the appellate court must review the sentence
under an abuse-of-discretion standard.” Gall v. United States, 128
S. Ct. 586, 597 (2007). Appellate courts are charged with
reviewing sentences for reasonableness. Id. at 594, 597.
Reasonableness review requires appellate consideration of both the
procedural and substantive reasonableness of a sentence. Id. at
597.
In determining whether a sentence is procedurally
reasonable, we first assess whether the district court properly
calculated the defendant’s advisory Guidelines range. Id. at
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596-97. We must then consider whether the district court failed to
consider the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008) factors
and any arguments presented by the parties, selected a sentence
based on “clearly erroneous facts,” or failed to sufficiently
explain the selected sentence. Id. at 597; United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007). Finally, we review the
substantive reasonableness of the sentence, “taking into account
the ‘totality of the circumstances . . . .’” Pauley, 511 F.3d at
473 (quoting Gall, 128 S. Ct. at 597). We afford sentences that
fall within the properly calculated Guidelines range a presumption
of reasonableness, see id., a presumption permitted by the Supreme
Court. Rita v. United States, 127 S. Ct. 2456, 2459, 2462 (2007).
The district court properly calculated Vance’s sentencing
range under the Guidelines and invited counsel to make any relevant
argument pursuant to the § 3553(a) sentencing factors. After
hearing counsel’s argument, permitting Vance the opportunity to
make a statement, and considering the § 3553(a) factors, the court
sentenced Vance to 87 months’ imprisonment, at the low end of
Vance’s Guidelines range. Thus, we conclude Vance’s sentence was
reasonable.
In accordance with Anders, we have reviewed the entire
record and conclude there are no meritorious issues for appeal. We
discern no infirmity in the trial process, and find the Government
presented ample evidence to support the jury’s guilty verdicts.
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Doe’s testimony that she and Vance had sexual intercourse in the
motel room in Harrisonburg, Virginia, stands unrefuted. The jury
clearly credited this testimony, and that credibility determination
will not be reviewed on appeal. United States v. Wilson, 484 F.3d
267, 283 (4th Cir. 2007). Moreover, the district court imposed a
reasonable sentence. Accordingly, we affirm the district court’s
judgment.
We require that counsel inform Vance, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Vance 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 Vance. We dispense with oral argument because the
facts and legal contentions are adequately set forth in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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