United States v. Overstreet , 190 F. App'x 291 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4767
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SAMUEL MORRIS OVERSTREET,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CR-04-9)
Submitted: June 26, 2006 Decided: July 18, 2006
Before KING, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Melvin L. Hill, WARE & HILL, L.L.P., Roanoke, Virginia, for
Appellant. John L. Brownlee, United States Attorney, R. Andrew
Bassford, Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Samuel Morris Overstreet pled guilty to possession of an
unregistered silencer and machinegun, 26 U.S.C. § 5861(d) (2000)
(Count One), and unlawful possession of a firearm after being
adjudicated as a mental defective or committed to a mental
institution, 18 U.S.C. § 922(g)(4) (2000) (Count Two).* Overstreet
appeals his sixty-three-month sentence, contending that the
sentence was excessive and that the district court clearly erred in
making a two-level adjustment for obstruction of justice, U.S.
Sentencing Guidelines Manual § 3C1.1 (2004). Overstreet has also
requested leave to file a pro se supplemental brief alleging
ineffective assistance of counsel as well as raising additional
claims, and he has filed motions requesting release pending appeal
and appointment of new counsel. We grant Overstreet’s motion to
file a pro se supplemental brief, deny his motions for bail and for
appointment of new counsel, deny as moot his motions to expedite,
and affirm his conviction and sentence.
We review for clear error the district court’s
determination that a defendant obstructed justice. United
States v. Kiulin, 360 F.3d 456, 460 (4th Cir. 2004). Overstreet
does not dispute that he engaged in conduct that constituted
obstruction of justice, but argues that the district court’s
decision to award him an adjustment for acceptance of
*
Count Three was dismissed on the government’s motion.
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responsibility contradicted its finding of obstruction of justice.
Ordinarily, a defendant who receives an adjustment for obstruction
of justice does not qualify for acceptance of responsibility;
however, in an extraordinary case, the court may apply both
adjustments. USSG § 3E1.1, comment. (n.4). Thus, the mere fact
that Overstreet received a reduction for acceptance of
responsibility does not render the § 3C1.1 adjustment clearly
erroneous.
We further conclude that the sentence was not excessive.
The district court sentenced Overstreet after considering the
advisory sentencing guidelines and the factors set out in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2006). See United States v.
Booker, 543 U.S. 220 (2005). The court sentenced Overstreet within
the guideline range and below the ten-year statutory maximum
applicable to each offense. The court specifically considered
Overstreet’s need for mental health counseling and treatment and
the need to protect the public. We cannot conclude that the
sentence is unreasonable. See United States v. Green, 436 F.3d
449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).
We have considered the issues raised by Overstreet in his
pro se supplemental brief and find no merit in them. A claim of
ineffective assistance will not succeed on direct appeal unless it
conclusively appears from the face of the record that counsel
provided ineffective representation. Overstreet has not met this
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test. United States v. James, 337 F.3d 387, 391 (4th Cir. 2003);
see also 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)). Therefore, his claim of ineffective assistance is
not properly raised in this direct appeal. Accordingly, we affirm
the conviction and the sentence imposed by the district court. We
grant Overstreet’s motion to file a supplemental brief and deny his
motions for bail and for appointment of new counsel. We deny
Overstreet’s motions to expedite as moot. 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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