US v. Charles McCoy

Filing 920100618

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4655 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES EDWARD MCCOY, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (3:08-cr-00404-JFA-1) Submitted: May 26, 2010 Decided: June 18, 2010 Before WILKINSON, GREGORY, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. James P. Rogers, Assistant Federal Public Defender, Columbia, South Carolina, for Appellant. Jeffrey Mikell Johnson, Marshall Prince, II, Assistant United States Attorneys, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Charles McCoy appeals from his conviction and 180-month sentence following a guilty plea to one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. 922(g)(1), 924(e) (2006). McCoy's counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967), stating that there were no meritorious issues for appeal, but questioning whether the district court complied with Fed. R. Crim. P. 11 in accepting is McCoy's guilty In his plea, pro and se of whether McCoy's sentence McCoy reasonable. supplemental counsel. brief, alleges ineffective assistance We affirm. During McCoy's plea hearing, in compliance with Rule 11, the district court properly informed McCoy of the rights he was forfeiting as a result of his plea and the nature of the charges and penalties he faced, found that McCoy was competent and entering his plea voluntarily, and determined there was a sufficient factual basis for the plea. establishes McCoy knowingly and Therefore, the record entered into his voluntarily guilty plea with a full understanding of its consequences and there was no error in the district court's acceptance of his plea. McCoy reasonable. also questions whether his sentence is This court reviews a sentence for reasonableness, 2 applying an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). consideration of both the This review requires appellate and the substantive procedural Id. reasonableness of a sentence. sentence is procedurally In determining whether a this court must assess reasonable, whether the district court properly calculated the guidelines range, considered the 3553(a) factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. Id.; see also United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) ("[A]n individualized explanation must accompany every sentence."). errors. Here, we find no procedural Although the district court's explanation for McCoy's 180-month sentence was brief, we find it adequate in view of the fact that both parties requested that sentence. We next review the substantive reasonableness of the sentence. McCoy was sentenced to the mandatory minimum terms of Accordingly, the imprisonment under the statutes of conviction. district court had no discretion to impose a lower sentence, see United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005), and McCoy's sentence is per se reasonable, see United States v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008). Finally, McCoy's pro se claim that counsel rendered ineffective assistance must be considered in a post-conviction proceeding brought pursuant to 28 U.S.C.A. 2255 (West Supp. 3 2009), unless counsel's alleged deficiencies conclusively appear on the record. See United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008); United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). the record that Because we find no conclusive evidence on rendered ineffective assistance, we counsel decline to consider this claim on direct appeal. 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. This court requires that counsel inform McCoy, in writing, of his right to petition review. the Supreme Court of the United States for further If McCoy 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 McCoy. facts and legal before contentions the court materials would decisional process. AFFIRMED 4

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