United States v. Thomason , 272 F. App'x 228 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4866
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JARVIS DERMAINE THOMASON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:06-cr-01270-HFF)
Submitted: March 27, 2008 Decided: April 1, 2008
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Margaret A. Chamberlain, CHAMBERLAIN LAW FIRM, Greenville, South
Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Columbia, South Carolina; Elizabeth Jean Howard, OFFICE
OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jarvis Dermaine Thomason pled guilty to possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), 924(e) (2000). He was sentenced to 188
months of imprisonment and a five-year term of supervised release.
On appeal, his counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there are no meritorious
issues for appeal, but raising for the court’s consideration
(1) whether Thomason’s sentence is reasonable; and (2) whether
counsel was ineffective below. Thomason has filed a pro se
supplemental brief. The Government declined to file a reply brief.
After reviewing the record, we affirm.
Thomason first contends his sentence is unreasonable.
Appellate courts review sentences imposed by district courts for
reasonableness, applying an abuse of discretion standard. Gall v.
United States, 128 S. Ct. 586, 597 (2007). When sentencing a
defendant, a district court must: (1) properly calculate the
guidelines range; (2) determine whether a sentence within that
range serves the factors set out in 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2007); (3) implement mandatory statutory limitations;
and (4) explain its reasons for selecting a sentence. United
States v. Green, 436 F.3d 449, 455-56 (4th Cir.), cert. denied, 547
U.S. 1156 (2006). A sentence within a correctly calculated
advisory guidelines range is presumptively reasonable. United
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States v. Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 547
U.S. 1142 (2006); see also Rita v. United States, 127 S. Ct. 2456,
2462-69 (2007) (upholding presumption of reasonableness for within-
guidelines sentence).
Our review of the record reveals no procedural or
substantive error with respect to Thomason’s sentence. Thomason’s
188-month sentence, which is within the applicable guidelines range
and below the statutory maximum, is presumptively reasonable. We
therefore conclude that the district court did not abuse its
discretion in imposing the sentence.
Thomason also argues that his trial counsel was
ineffective because his plea agreement initially included a waiver
of his right to appeal. Claims of ineffective assistance of
counsel are not cognizable on direct appeal unless the record
conclusively establishes ineffective assistance. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). To allow for
adequate development of the record, claims of ineffective
assistance generally should be brought in a 28 U.S.C. § 2255 (2000)
motion. United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
We find that Thomason has failed to establish ineffective
assistance of counsel on direct appeal.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
further conclude that the claims raised in Thomason’s pro se
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supplemental brief are without merit. We therefore affirm
Thomason’s conviction and sentence. This court requires that
counsel inform Thomason, in writing, of the right to petition the
Supreme Court of the United States for further review. If Thomason
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 Thomason. 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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