US v. Evans

Filing 920070913

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4366 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DAVID B. EVANS, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:06-cr-00211) Submitted: September 11, 2007 Decided: September 13, 2007 Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges. Affirmed by unpublished per curiam opinion. W. Jeffrey Vollmer, GOODWIN & GOODWIN, LLP, Charleston, West Virginia, for Appellant. Monica Lynn Dillon, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David B. Evans pled guilty pursuant to a written plea agreement to one count of distribution of cocaine base, in violation of 21 U.S.C. 841(a)(1) (2000). Evans was sentenced by Finding no the district court to eighteen months' imprisonment. error, we affirm. On appeal, counsel filed a brief pursuant to Anders v. California, meritorious provided 386 U.S. 738 (1967), but and asserting there that were no grounds for appeal, contending that Evans' counsel is ineffective assistance sentence unreasonable. Evans was notified of his right to file a pro se supplemental brief, but did not do so, and the Government elected not to file a responsive brief. Evans contends his counsel was ineffective for failing to note an appeal. He further contends that counsel improperly An ineffective advised Evans that he would receive probation. assistance of counsel claim is generally not cognizable on direct appeal, but should instead be asserted in a post-conviction motion under 28 U.S.C. 2255 (2000). See United States v. Richardson, However, we have recognized an 195 F.3d 192, 198 (4th Cir. 1999). exception to the general rule when "it `conclusively appears' from the record that defense counsel did not provide effective representation." Id. (quoting United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994)). Because the record does not - 2 - conclusively establish that counsel was ineffective, we conclude Evans' claims are not cognizable on appeal. Evans additionally contends that his sentence is unreasonable because the court relied on the 100:1 crack to powder cocaine ratio and failed to adequately consider his medical conditions. However, the district court appropriately calculated the advisory guideline range and considered it in conjunction with other relevant factors under the Guidelines and 18 U.S.C. 3553(a) (2000). Cir.), See United States v. Moreland, 437 F.3d 424, 432-33 (4th cert. denied, 126 S. Ct. 2054 (2006). The court additionally considered the Presentence Investigation Report, which extensively detailed Evans' mental and physical health issues. Though Evans argues that the district court should have disregarded the 100:1 ratio in determining an appropriate sentence, this argument is foreclosed by United States v. Eura, 440 F.3d 625, 63034 (4th Cir. 2006), petition for cert. filed, ___ U.S.L.W. ___ (U.S. June 20, 2006) (No. 05-11659). Thus, Evans' eighteen-month sentence, which is at the bottom of the applicable Guidelines range and well below the statutory maximum, is reasonable. See United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006); see also Rita v. United States, 127 S. Ct. 2456, 2462-65 (2007). In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for - 3 - appeal. Accordingly, we affirm the judgment of the district court. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move this court for leave to withdraw from representation. Counsel's motion must state that a copy thereof We dispense with oral argument because was served on the client. the facts and legal contentions are adequately presented in the materials before the court and argument would not aid in the decisional process. AFFIRMED - 4 -

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