United States v. William McManus

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4313
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILLIAM DEVON MCMANUS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:12-cr-00174-CCE-1)
Submitted: October 31, 2014 Decided: March 19, 2015
Before GREGORY, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester III, SHARPLESS & STAVOLA, PA, Greensboro, North
Carolina, for Appellant. Anand P. Ramaswamy, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Devon McManus pled guilty to possession of
child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B)
and (b)(2) (2012). The district court originally granted a
downward variance from the Guidelines to sentence McManus to
seventy-two months’ imprisonment. On appeal, McManus challenged
only the application of a five-level enhancement under U.S.
Sentencing Guidelines Manual (“USSG”) § 2G2.2(b)(3)(B) (2011),
arguing that he should have received only a two-level
enhancement under USSG § 2G2.2(b)(3)(F). We agreed, vacated
McManus’ sentence, and remanded for resentencing. United
States v. McManus, 734 F.3d 315, 318-23 (4th Cir. 2013). At the
resentencing hearing, the court amended the Guidelines range and
varied downward from the amended range to impose a sentence of
sixty-three months’ imprisonment.
McManus appeals the district court’s judgment. His
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting that there are no meritorious issues
for appeal, but specifically addressing whether the sentence on
remand was reasonable and whether the record demonstrates
ineffective assistance of counsel or prosecutorial misconduct.
McManus has filed a pro se supplemental brief, raising multiple
challenges to his conviction and sentence. The Government has
declined to file a response brief. We affirm.
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Initially, although recognizing our obligations under
Anders, we conclude that some of the arguments McManus raises in
his pro se supplemental brief are barred by operation of the
mandate rule. See United States v. Pileggi, 703 F.3d 675, 680
(4th Cir. 2013) (recognizing that party “is not permitted to use
the accident of a remand to raise an issue that it could just as
well have raised in the first appeal” (internal quotation marks
and alterations omitted)); United States v. Susi, 674 F.3d 278,
283-86 (4th Cir. 2012) (describing mandate rule and waiver in
resentencing context). Although we have previously recognized
certain limited exceptions to the mandate rule, see Pileggi, 703
F.3d at 681-82, we find these exceptions inapplicable to
McManus’ case. Thus, we conclude that McManus’ challenges to
his conviction and to the length and conditions of his
supervised release term are barred by the mandate rule. Insofar
as his jurisdictional challenge to his statute of conviction
falls within the scope of our mandate, we find McManus’
arguments on this basis unpersuasive. See United States v.
Forrest, 429 F.3d 73, 77-79 (4th Cir. 2005) (rejecting the
argument that 18 U.S.C. §§ 2251(a) and 2252A(a)(5)(b) as applied
to the defendant “exceed[] Congress’s Commerce Clause authority
because his private intrastate production and possession of
child pornography did not substantially affect interstate
commerce”).
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Turning to McManus’ sentence of imprisonment, we
review for reasonableness, applying “a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41 (2007). We first consider whether the district court
committed “significant procedural error,” such as improper
calculation of the Guidelines range, insufficient consideration
of the 18 U.S.C. § 3553(a) (2012) factors, and inadequate
explanation of the sentence imposed. Gall, 552 U.S. at 51. In
assessing Guidelines calculations, we review factual findings
for clear error, legal conclusions de novo, and unpreserved
arguments for plain error. United States v. Strieper, 666 F.3d
288, 292 (4th Cir. 2012).
If we find no procedural error, we examine the
substantive reasonableness of a sentence under “the totality of
the circumstances.” Gall, 552 U.S. at 51. The sentence imposed
must be “sufficient, but not greater than necessary,” to satisfy
the goals of sentencing. See 18 U.S.C. § 3553(a). We presume
on appeal that a below-Guidelines sentence is substantively
reasonable. Susi, 674 F.3d at 289. The defendant bears the
burden to “rebut the presumption by demonstrating that the
sentence is unreasonable when measured against the § 3553(a)
factors.” United States v. Montes-Pineda, 445 F.3d 375, 379
(4th Cir. 2006) (internal quotation marks omitted).
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We have thoroughly reviewed the record and discern no
error in the sentence of imprisonment imposed on remand. The
district court properly calculated McManus’ Guidelines range, in
accordance with this court’s direction in his prior appeal. The
court provided a detailed explanation for the sentence it
imposed, grounded in the § 3553(a) factors, and properly
considered evidence of McManus’ post-incarceration
rehabilitation under Pepper v. United States, 131 S. Ct. 1229
(2011), when imposing a further variance below the Guidelines
range. Moreover, McManus fails to rebut the presumption of
reasonableness accorded his below-Guidelines sentence. See
Montes-Pineda, 445 F.3d at 379. We therefore conclude his
sentence is reasonable.
Both counsel and McManus question whether trial
counsel was ineffective. We decline to reach these claims in
this appeal. 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 conclusive evidence of
ineffective assistance of counsel on the face of the record, we
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conclude these claims should be raised, if at all, in a § 2255
motion. Moreover, while counsel addresses prosecutorial
misconduct in the Anders brief, we find no colorable evidence of
such misconduct on the record.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform McManus, in writing, of the right
to petition the Supreme Court of the United States for further
review. If McManus 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 McManus.
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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