United States v. Donnie Moyer ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4903
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONNIE LOMACK MOYER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:14-cr-00029-CCE-1)
Submitted: June 22, 2015 Decided: July 16, 2015
Before SHEDD, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sarah Jessica Farber, FARBER LAW FIRM, Raleigh, North Carolina,
for Appellant. Robert Albert Jamison Lang, Assistant United States
Attorney, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donnie Lomack Moyer pled guilty, pursuant to a plea agreement,
to possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1) (2012). The district court sentenced Moyer
to 77 months’ imprisonment, the bottom of Moyer’s advisory
Sentencing Guidelines range. 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 questioning whether
Moyer’s sentence is substantively reasonable. Moyer has filed a
pro se supplemental brief, also questioning the substantive
reasonableness of his sentence and asserting that trial counsel
rendered ineffective assistance. We affirm.
We review a sentence for reasonableness “under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41 (2007). “Any sentence that is within or below a properly
calculated Guidelines range is presumptively [substantively]
reasonable. Such a presumption can only be rebutted by showing
that the sentence is unreasonable when measured against the 18
U.S.C. § 3553(a) [(2012)] factors.” United States v. Louthian,
756 F.3d 295, 306 (4th Cir.) (citation omitted), cert. denied, 135
S. Ct. 421 (2014).
Moyer has not rebutted the presumption that his within-
Guidelines sentence is substantively reasonable. The district
court was sufficiently sensitive to the issues Moyer faced after
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leaving the military, recommending that Moyer undergo
psychological, behavioral, and substance abuse treatment while
incarcerated. The court also reasonably concluded that Moyer’s
declaration that he was a changed man did not square with Moyer’s
recent spurt of criminal activity. Importantly, the court did not
ignore counsel’s argument for a downward variance; rather, the
court explicitly considered the mitigating factors when deciding
to impose a sentence at the bottom of the advisory Guidelines
range. Finally, it was well within the court’s discretion to
impose this federal sentence for possession of a firearm
consecutively to Moyer’s state sentence for possession of
marijuana. See U.S. Sentencing Guidelines Manual § 5G1.3(c), p.s.
(2013) (providing court discretion to run sentence consecutively
to undischarged term of imprisonment when charges are unrelated).
In his pro se supplemental brief, Moyer raises a variety of
ineffective assistance of counsel claims. Unless an attorney’s
ineffectiveness conclusively appears on the face of the record,
ineffective assistance claims are not generally addressed on
direct appeal. United States v. Benton, 523 F.3d 424, 435 (4th
Cir. 2008). Instead, such claims should be raised in a motion
brought pursuant to 28 U.S.C. § 2255 (2012), in order to permit
sufficient development of the record. United States v. Baptiste,
596 F.3d 214, 216 n.1 (4th Cir. 2010). Because there is no
demonstrated evidence of ineffective assistance of counsel on the
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face of the record, these claims should be raised, if at all, in
a § 2255 motion.
In accordance with Anders, we have reviewed the entire record
in this case and have found no meritorious grounds for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Moyer, in writing, of his right to
petition the Supreme Court of the United States for further review.
If Moyer 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 Moyer. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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