United States v. Thomas

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5042
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
COREY RONSHION THOMAS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (CR-04-219)
Submitted: May 16, 2006 Decided: May 18, 2006
Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Leslie Carter Rawls, Charlotte, North Carolina, for Appellant.
Robert John Gleason, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Corey Ronshion Thomas pled guilty, pursuant to a plea
agreement, to one count of possession of a firearm after having
been convicted of a crime punishable by more than one year of
imprisonment, in violation of 18 U.S.C. § 922(g) (2000). The
district court sentenced Thomas to thirty-seven months of
imprisonment, the bottom of the applicable advisory Guideline
range. On appeal, counsel filed an Anders1 brief, in which she
states that there are no meritorious issues for appeal, but
requests that this court consider whether Thomas effectively waived
his right to appeal, whether Thomas’ counsel was ineffective,
whether the Government engaged in prosecutorial misconduct, and
whether the sentence was inconsistent with paragraph five of the
plea agreement. Thomas was advised of his right to file a pro se
supplemental brief, but has not filed a brief. We affirm.
Although the plea agreement included a waiver of Thomas’
right to appeal his conviction or sentence, the Government has not
filed a brief in this case or moved to dismiss the appeal based
upon the waiver. Because the Government has not sought to enforce
the waiver, we need not consider whether Thomas’ agreement to the
waiver was knowing and voluntary.
Claims of ineffective assistance of counsel are generally
not cognizable on direct appeal. See United States v. King, 119
1
Anders v. California, 386 U.S. 738 (1967).
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F.3d 290, 295 (4th Cir. 1997). Rather, to allow for adequate
development of the record, a defendant must bring his claim in a
motion under 28 U.S.C. § 2255 (2000). See id.; United States v.
Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception exists when
the record conclusively establishes ineffective assistance. United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Our
review of the record leads us to conclude that any deficiencies in
counsel’s performance are not conclusively demonstrated.
A claim of prosecutorial misconduct is reviewed to
determine whether the conduct complained of so infected the trial
with unfairness as to make the resulting conviction a denial of due
process. United States v. Scheetz, 293 F.3d 175, 185 (4th Cir.
2002). To prevail under this standard, Thomas must show that “the
prosecutor’s remarks or conduct were improper and, . . . that such
remarks or conduct prejudicially affected his substantial rights”
so as to deprive him of a fair trial. Id. Thomas does not
identify any specific remarks or conduct by the Assistant United
States Attorney that were allegedly improper, and our review of the
record discloses no impropriety.
In paragraph five of the plea agreement, Thomas
stipulated to certain factors relevant to the determination of the
sentencing range under the Sentencing Guidelines.2 Our review of
the record reveals no inconsistency between these stipulations and
2
U.S. Sentencing Guidelines Manual (2004).
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the offense level calculations in the presentence report, and we
conclude that Thomas’ Guideline range was correctly determined to
be thirty-seven to forty-six months of imprisonment. Moreover, the
district court’s selection of the particular sentence imposed in
this case is reasonable. United States v. Johnson, __ F.3d __,
2006 WL 893594, at *2 (4th Cir. Apr. 7, 2006) (“a sentence within
the proper advisory Guidelines range is presumptively
reasonable.”).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Thomas’ conviction and sentence. This
court requires that counsel inform Thomas, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Thomas 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
Thomas.
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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