US v. Lennard Gray

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00228-GBL-1 Copies to all parties and the district court/agency. [998421278] [08-5135]

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US v. Lennard Gray Doc. 0 Case: 08-5135 Document: 53 Date Filed: 09/09/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5135 UNITED STATES OF AMERICA, Plaintiff Appellee, v. LENNARD GRAY, Defendant Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:08-cr-00228-GBL-1) Submitted: August 19, 2010 Decided: September 9, 2010 Before MOTZ, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. J. Brian Donnelly, PRICE, PERKINS, LARKEN & DONNELLY, Virginia Beach, Virginia, for Appellant. Dana James Boente, Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Dockets.Justia.com Case: 08-5135 Document: 53 Date Filed: 09/09/2010 Page: 2 PER CURIAM: Lennard Gray was convicted by a jury and sentenced to a total of eighty months in prison for one count of conspiracy to distribute five grams or more of cocaine base, in violation of 21 U.S.C. 846 (2006), and three counts of distribution of five grams or more of cocaine base, in violation of 21 U.S.C. 2, 841(a)(1) (2006). Counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), indicating that the court should affirm the district court's judgment but explaining that Gray wishes to challenge the district court's denial of his Fed. R. Crim. P. 29 motion and the effectiveness of his trial counsel. Counsel has also moved to withdraw from Gray has not filed a pro se further representation of Gray. supplemental brief despite receiving notice that he may do so, and the Government declined to file a responsive brief. no error, we affirm. We review the district court's denial of Gray's Rule 29 motion de novo. 693 (4th Cir. 2005). See United States v. Alerre, 430 F.3d 681, When a Rule 29 motion was based on a claim Finding of insufficient evidence, the jury's verdict must be sustained "if there is substantial evidence, taking the view most favorable to the Government, to support it." United States v. Abu Ali, 528 F.3d 210, 244 (4th Cir. 2008) (internal quotation marks and citations omitted). 2 This court "ha[s] defined Case: 08-5135 Document: 53 Date Filed: 09/09/2010 Page: 3 `substantial evidence' as evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." Alerre, 430 F.3d at 693 (internal quotation marks and citation omitted). We have reviewed the record of the district court proceedings and conclude that it was reasonable for the jury to accept the Government's evidence as adequate and sufficient to find Gray guilty of the offenses with which he was charged beyond a reasonable doubt. We reject on this appeal Gray's assertion that his trial counsel was ineffective. counsel motion claim under should 28 generally An ineffective assistance of be raised (West in a habeas 2010) corpus in the U.S.C.A. 2255 Supp. district court. See United States v. Richardson, 195 F.3d 192, Although an ineffective assistance claim 198 (4th Cir. 1999). may be cognizable on direct appeal if "it `conclusively appears' from the record that defense counsel did not provide effective representation," id. (internal citation omitted), it does not conclusively ineffective appear on the record that counsel an provided representation. Accordingly, ineffective assistance of counsel claim is not cognizable on this appeal. Although not challenged by Gray, we have also reviewed his sentence in accordance with our obligations under Anders. Gray's presentence investigation report ("PSR") properly placed 3 Case: 08-5135 Document: 53 Date Filed: 09/09/2010 Page: 4 in criminal history category III and the district court did not err when it attributed him with a total offense level of twentysix, yielding a Guidelines range of seventy-eight to ninetyseven months. The district court afforded counsel an opportunity to argue regarding an appropriate sentence, afforded Gray an opportunity to allocute, considered the 18 U.S.C. 3553(a) (2006) factors before imposing Gray's sentence, and thoroughly explained its rationale for imposing Gray's particular sentence. See United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (recognizing that the district court must "place on the record an individualized assessment based on the particular facts of the case . . . before must it" and a that the "individualized assessment provide rationale tailored to the particular case at hand and [be] adequate to permit meaningful appellate review") (internal quotation marks and citations omitted). sentence to Because is this court and presumes since Gray's has within-Guidelines presented no correct, this Gray we evidence rebut presumption, affirm Gray's eighty-month sentence. F.3d 178, 193 (4th Cir. 2007). See United States v. Allen, 491 In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court's judgment. At this juncture, we also deny counsel's motion to withdraw from further 4 Case: 08-5135 Document: 53 Date Filed: 09/09/2010 Page: 5 representation of Gray. Rather, this court requires that counsel inform Gray, in writing, of the right to petition the Supreme Court of the United States for further review. If Gray 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 We motion must state that a copy thereof was served on Gray. 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 5

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