US v. James Miller

Filing 920081216

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4537

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES RHETT MILLER, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Anderson. Henry M. Herlong, Jr., District Judge. (8:07-cr-00936-HMH-1)

Submitted:

November 17, 2008

Decided:

December 16, 2008

Before NIEMEYER, KING, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David W. Plowden, Assistant Federal Public Defender, Greenville, South Carolina, for Appellant. Maxwell B. Cauthen, III, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: James agreement, to Rhett Miller of pled an guilty, without a plea in

possession

unregistered

firearm,

violation of 26 U.S.C. § 5861(d) (2000). to 115 months' imprisonment.

Miller was sentenced

Finding no error, we affirm.

On appeal, counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting there are no

meritorious grounds for appeal, but questioning whether Miller's sentence brief, is reasonable. that Miller the Fed. filed R. a pro P. se 11 supplemental hearing was

contending

Crim.

inadequate and that his counsel provided ineffective assistance. The Government elected not to file a responding brief. Miller initially questions the adequacy of the Rule 11 hearing. plea in Because Miller did not seek to withdraw his guilty the by district this court court, for any plain alleged error. Rule 11 error States is v.

reviewed

United

Martinez, 277 F.3d 517, 524-26 (4th Cir. 2002).

To establish

plain error, Miller must "show that an error occurred, that the error was plain, and that the error affected his substantial rights." 2005). United States v. White, 405 F.3d 208, 215 (4th Cir. We have reviewed the record and find no error. he is

Additionally,

Miller's

conclusory

assertions

that

"actually innocent" of the offense and that his plea was not

2

knowingly and voluntarily made are directly contradicted by the record. Miller reasonable. must next questions whether his sentence is

When determining a sentence, the district court the appropriate advisory Guidelines range and

calculate

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

Appellate review of a district court's imposition

of a sentence, "whether inside, just outside, or significantly outside the Guidelines range," is for abuse of discretion. at 591. Id.

Sentences within the applicable Guidelines range may be United States

presumed by the appellate court to be reasonable. v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

The district court followed the necessary procedural steps in sentencing Guidelines Miller, as appropriately properly treating calculating the and

Sentencing

advisory,

considering the applicable Guidelines range, and weighing the relevant § 3553(a) factors. Furthermore, Miller's sentence,

which is no greater than the applicable Guidelines range and below the ten-year statutory maximum, may be presumed

reasonable.

Thus, we conclude that the district court did not

abuse its discretion in imposing the chosen sentence. Miller finally contends that his counsel provided

ineffective assistance.

An ineffective assistance of counsel 3

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, 195 F.3d 192, However, we have recognized an exception

198 (4th Cir. 1999).

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 Because the record does not was ineffective, Miller's

F.3d 582, 590 (4th Cir. 1994)). conclusively establish that

counsel

claim is not cognizable on direct appeal. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. court. writing, Accordingly, we affirm the judgment of the district This court requires that counsel inform his client, in 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 We dispense with contentions the court are and

that a copy thereof was served on the client. oral argument because in the the facts and legal before

adequately

presented

materials

argument would not aid in the decisional process. AFFIRMED 4