United States v. Goodine , 189 F. App'x 172 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5146
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONALD RAY GOODINE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-03-472)
Submitted: June 9, 2006 Decided: July 5, 2006
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, P.A., Greensboro, North
Carolina, for Appellant. Robert Albert Jamison Lang, OFFICE OF THE
UNITED STATES ATTORNEY, Winston-Salem, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Donald Ray Goodine appeals his jury conviction and
sentence on a charge of possession of a firearm by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000).1
The district court sentenced Goodine to 92 months’ imprisonment,
three years of supervised release, and ordered payment of a $100
statutory assessment.2 Goodine’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 raising several
issues for consideration. Goodine was given an opportunity to file
a pro se brief, but has failed to do so. Finding no reversible
error, we affirm.
Goodine’s first issue on appeal is that his retrial
contravened the Double Jeopardy Clause of the Constitution. We
previously have thoroughly considered this claim in the context of
Goodine’s appeal from the district court’s post-trial ruling that
Goodine could be retried on the charge on which the jury was hung
1
Goodine was previously tried on a two-count indictment on
charges of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2000). The trial resulted in
a hung jury on one charge and an acquittal on the other. This case
arises from the retrial on the charge on which the previous jury
was hung.
2
The probation officer calculated a sentencing guideline range
of 77 to 96 months’ imprisonment founded on a base offense level of
24, an adjusted offense level of 26 (after applying a two-level
enhancement for obstruction of justice), and a criminal history
category of IV.
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and a mistrial was declared. United States v. Goodine, 400 F.3d
202 (2005). In that appeal, we determined that there was no
constitutional impediment to retrying Goodine, as the indictment
was not multiplicitous. Id. As this claim already has been
determined adversely to Goodine, we decline to revisit it here.
See generally Davis v. United States, 417 U.S. 333, 342 (1974);
Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976).
Goodine next asserts that the trial court erred in
failing to instruct the jury on the defense of coercion and duress,
on the theory that he handled the firearm because his girlfriend
historically presented a threat to him. We review for abuse of
discretion the district court’s decision whether to grant a request
for a particular jury instruction, see United States v. Abbas, 74
F.3d 506, 513 (4th Cir. 1996), and find no such abuse of discretion
in this instance.
Goodine next contends that his trial counsel was
ineffective for advising Goodine not to testify and for stipulating
to the interstate nexus of the firearm. Goodine’s claim of
ineffective assistance of counsel must be brought in a collateral
proceeding under 28 U.S.C. § 2255 (2000), unless it conclusively
appears from the face of the record that his counsel was
ineffective. United States v. DeFusco, 949 F.2d 114, 120-21 (4th
Cir. 1991). Because the record does not conclusively establish
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ineffective assistance of counsel, we decline to consider this
claim on direct appeal.
Goodine’s final claim is that his sentence is
unreasonable. After the Supreme Court’s decision in United States
v. Booker, 543 U.S. 220 (2005), a sentencing court no longer is
bound by the range prescribed by the sentencing guidelines. See
United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005).
However, in determining a sentence post-Booker, sentencing courts
still are required to calculate and consider the guideline range
prescribed thereby as well as the factors set forth in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2005). Id. We will affirm a post-
Booker sentence if it is both reasonable and within the statutorily
prescribed range. Id. We further have stated that “a sentence
imposed ‘within the properly calculated Guidelines range . . . is
presumptively reasonable.’” United States v. Green, 436 F.3d 449,
457 (4th Cir.), cert. denied, ___ S. Ct. ___, 2006 WL 1057741 (U.S.
May 22, 2006).
We find that the district court properly calculated the
guideline range and appropriately treated the guidelines as
advisory. The court sentenced Goodine only after considering the
factors set forth in § 3553(a). Based on these factors, and
because the court sentenced Goodine within the applicable guideline
range and the statutory maximum, we find that Goodine’s sentence of
92 months’ imprisonment is reasonable.
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Goodine’s conviction and sentence.
This court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client 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 the client.
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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