US v. Anthony Boyd

Filing 920090626

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4575

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTHONY EUGENE BOYD, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:07-cr-00045-RJC-1)

Submitted:

June 22, 2009

Decided:

June 26, 2009

Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Claire J. Rauscher, Executive Director, Ann L. Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Anthony Boyd appeals from the criminal judgment

imposing a 255-month term of imprisonment after he pled guilty to possession with intent to distribute marijuana, Ecstasy,

cocaine, and cocaine base, and possession of a firearm during and in relation to a drug trafficking crime. Counsel has filed

a brief in accordance with Anders v. California, 386 U.S. 738 (1967), stating that after a review of the record, there are no meritorious issues for appeal. Boyd filed a pro se supplemental Boyd's was

brief, and the Government has declined to file a brief. Anders brief raised the issue of whether trial

counsel

ineffective in failing to object to the use of a North Carolina conviction for drug trafficking to establish Boyd's career

offender status.

Finding no error, we affirm.

Claims of ineffective assistance of counsel generally are not cognizable on direct appeal. F.3d 290, 295 (4th Cir. 1997). United States v. King, 119

Rather, to allow for adequate

development of the record, a defendant must bring his claims in a 28 U.S.C.A. § 2255 (West Supp. 2008) motion. at 295. An exception ineffective exists where the King, 119 F.3d conclusively States v.

record United

establishes

assistance.

Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Here, the record does not support Boyd's claim. does not conclusively appear from 2 the record that It

counsel's

failure

to

object

was

prejudicial.

It

is

unknown

whether

counsel investigated the facts of the conviction and the record does not include Because committed we the state is indictment no that or judgment for the that

offense. counsel sentence,

there errors

non-speculative negatively Boyd's

evidence

affected

Boyd's of

decline

to

consider

allegations

ineffective assistance at this time. Boyd filed a pro se supplemental brief raising issues relating to the merits of conviction, including amendment of the indictment, illegal search and seizure, ineffective assistance relating to search and seizure issues, and that his sentence was not reasonable. Boyd has waived the issues regarding his

conviction by pleading guilty. This court reviews a sentence for reasonableness under an abuse of discretion standard. Gall v. United States, 552 This review requires

U.S. 38, 128 S. Ct. 586, 597 (2007).

appellate consideration of both the procedural and substantive reasonableness of a sentence. Id. at 597. In determining

whether a sentence is procedurally reasonable, this court must first assess whether the district court properly calculated the defendant's advisory Guidelines range. Id. at 596-97. A

sentence within the properly calculated Guidelines range may be afforded an appellate presumption of reasonableness. Rita v. This

United States, 551 U.S. 338, 127 S. Ct. 2456, 2459 (2007). 3

court must then consider whether the district court failed to consider the § 3553(a) factors, analyzed any arguments presented by the parties, or sufficiently explained the selected sentence. Gall, 128 S. Ct. at 597. Finally, this court reviews the

substantive reasonableness of the sentence, "taking into account the totality of the circumstances, including the extent of any variance from the Guidelines range." 511 F.3d 468, 473 (4th Cir. 2007). United States v. Pauley,

This court's recent decision

in United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009), requires an "individualized assessment" of the particular facts of every sentencing case, whether the district court imposes an above, below, or within-Guidelines sentence. Boyd's 255-month sentence was seven months below the low end of the Guidelines range. The court carefully considered

counsel's argument and specifically articulated its reasons for crafting the sentence, with particular emphasis on Boyd's

lengthy criminal history and escalation of criminal activity. We therefore conclude that Boyd's sentence was not an abuse of discretion and is reasonable. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Boyd's conviction and sentence. This court

requires that counsel inform Boyd, in writing, of the right to petition the Supreme Court of 4 the United States for further

review.

If Boyd 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 We dispense with oral argument because the are and adequately argument presented not in aid the the

was served on Boyd. facts and legal before

contentions the court

materials

would

decisional process. AFFIRMED

5