US v. Robert Thompson

Filing 920090803

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4160

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT ANTHONY THOMPSON, a/k/a Amp, a/k/a Rat, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:03-cr-00181-FDW-DCK-1; 3:07-CV-209-W-2)

Submitted:

July 30, 2009

Decided:

August 3, 2009

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North Carolina, for Appellant. William A. Brafford, Assistant United States Attorney, Charlotte, North Carolina; Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina; Gretchen C.F. Shappert, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Robert Anthony Thompson was convicted, pursuant to a straight-up guilty plea, of conspiracy to possess with intent to distribute at least five kilograms of powder cocaine and at

least 50 grams of cocaine base, in violation of 21 U.S.C. § 846 (2006) (Count One), and possession with intent to distribute 500 grams or more of in cocaine violation powder of 21 and five grams or more of

cocaine Eight).

base,

U.S.C.

§ 841

(2006)

(Count

The district court sentenced Thompson to the statutory

mandatory minimum sentence of 240 months' imprisonment on each count, to run concurrently, as well as ten years of supervised release on each count, to run concurrently. Thompson's counsel

has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), challenging the reasonableness of Thompson's sentence

and claiming ineffective assistance of counsel, but concluding that there are no meritorious issues for appeal. Thompson has

filed a supplemental pro se brief, in which he asserts error in the district court's refusal to depart below the statutory

mandatory minimum sentence and in its failure to vacate civil forfeitures he claims were erroneously entered by a civil court. Finding no reversible error, we affirm. Thompson's first claim of error on appeal, both by counsel and pro se, is a challenge to his sentence. When

determining a sentence, the district court must calculate the 2

appropriate

advisory

guidelines

range

and

consider

it

in

conjunction with the factors set forth in 18 U.S.C. § 3553(a) (2006). Gall v. United States, 128 S. Ct. 586, 596 (2007).

Appellate review of a district court's imposition of a sentence, "whether inside, just outside, or significantly outside the

[g]uidelines range," is for abuse of discretion.

Id. at 591.

Sentences within the applicable guidelines range may be presumed by the appellate 511 F.3d court 468, to 473 be reasonable. (4th is Cir. per se United States Further, v. a

Pauley,

2007).

statutorily

required

sentence

reasonable.

United

States v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008). The district court followed the necessary procedural steps in sentencing Thompson, appropriately treating the

sentencing guidelines as advisory, and properly calculating and considering the applicable guidelines range and the relevant

§ 3553(a) factors. to life. applicable

Thompson's guidelines range was 240 months

His 240-month sentence, which is the low end of the guidelines range and represents the applicable Pauley,

statutory mandatory minimum sentence, was reasonable. 511 F.3d at 473; Farrior, 535 F.3d at 224.

In addition, ineffective assistance of counsel claims are not generally cognizable on direct appeal unless ineffective assistance "conclusively appears" on the record. See United As no

States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). 3

such ineffective assistance is evident in this case, this claim is not cognizable on direct appeal, but instead must be raised, if at all, in a post-conviction proceeding pursuant to 28

U.S.C.A. § 2255 (West 2000 & Supp. 2009). James, 337 F.3d 387, 391 (4th Cir. 2003).

See United States v.

We have reviewed Thompson's pro se supplemental brief and find no merit to his claims. have reviewed the record in In accordance with Anders, we case and have found no

this

meritorious issues for appeal. conviction inform Supreme and sentence. in the This

We therefore affirm Thompson's court the requires right to that counsel the If

Thompson, Court of

writing, United

of

petition review.

States

for

further

Thompson 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 Thompson. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

4