United States v. Verdell ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4317
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DONNIE RAYVON VERDELL,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00320-WO-1)
Submitted: November 18, 2010 Decided: November 29, 2010
Before SHEDD and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James B. Craven III, Durham, North Carolina, for Appellant.
Terry Michael Meinecke, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donnie Rayvon Verdell pled guilty to conspiracy to
distribute cocaine base, 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846
(2006), and felon in possession of a firearm, 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2006). He received a 168-month
sentence. On appeal, counsel for Verdell has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there are no meritorious grounds for appeal, but
questioning whether (1) Verdell’s appellate waiver is
enforceable; (2) counsel below rendered ineffective assistance;
(3) Verdell’s voluntary post-arrest statements were detrimental
to him; and (4) Verdell’s sentence is reasonable. Although
informed of his right to do so, Verdell has not filed a pro se
supplemental brief. We affirm.
Counsel first challenges the enforceability of
Verdell’s appellate waiver. However, the Government has not
filed a motion to dismiss asserting the waiver, and we do not
sua sponte enforce appellate waivers. See generally United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005) (citing
United States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000)).
Accordingly, we find this issue is moot.
We review a sentence for reasonableness under an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires appellate consideration of
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both the procedural and substantive reasonableness of a
sentence. Id. This court must assess whether the district
court properly calculated the advisory Guidelines range,
considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed any
arguments presented by the parties, and sufficiently explained
the selected sentence. United States v. Lynn, 592 F.3d 572, 576
(4th Cir. 2010) (“[A]n individualized explanation must accompany
every sentence.”); United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009) (same). In addition, this court presumes a
sentence within a properly determined advisory Guidelines range
is substantively reasonable. United States v. Allen, 491 F.3d
178, 193 (4th Cir. 2007).
We conclude that Verdell’s sentence is both
procedurally and substantively reasonable. The district court
properly calculated Verdell’s Guidelines range (262 to 327
months of imprisonment), treated the Guidelines as advisory, and
considered the applicable 18 U.S.C. § 3553(a) factors. See
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
Given the circumstances of Verdell’s case, the district court
granted a downward variance to the twenty-year mandatory
minimum, and then granted the Government’s motion for a thirty
percent downward departure, based on Verdell’s substantial
assistance, to 168 months’ imprisonment. The district court
clearly based its sentence on its individualized assessment of
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the facts of the case, and we conclude the district court did
not abuse its discretion in imposing the chosen sentence.
Verdell also suggests counsel was ineffective in not
raising defenses of jurisdiction and/or innocent possession of
the firearm. Claims of ineffective assistance of counsel are
not cognizable on direct appeal unless the record conclusively
establishes that counsel provided ineffective assistance.
United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
We find that Verdell’s claims are not ripe for review at this
time.
As required by Anders, we have reviewed the record and
find no meritorious issues for review. * Accordingly, we affirm
the district court’s judgment and deny counsel’s motion to
withdraw. This court requires that counsel inform Verdell in
writing of his right to petition the Supreme Court of the United
States for further review. If Verdell requests that a petition
be filed, but counsel believes that such a petition would be
frivolous, counsel may then move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Verdell. We dispense with oral
argument because the facts and legal contentions are adequately
*
As counsel concedes, Verdell’s post-arrest admissions were
voluntary and we find no meritorious issue for appeal in this
regard.
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presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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