US v. Henry Clark


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for other relief [998357807-2] Originating case number: 1:08-cr-00297-WO-1 Copies to all parties and the district court/agency. [998459636] [09-5042]

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US v. Henry Clark Doc. 0 Case: 09-5042 Document: 40 Date Filed: 11/04/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5042 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HENRY THOMAS CLARK, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:08-cr-00297-WO-1) Submitted: October 20, 2010 Decided: November 4, 2010 Before KING, DUNCAN, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas N. Cochran, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Terry Michael Meinecke, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Case: 09-5042 Document: 40 Date Filed: 11/04/2010 Page: 2 PER CURIAM: Pursuant to a plea agreement, Henry Thomas Clark pled guilty to possession with intent to distribute 11.6 grams of cocaine base ("crack"), in violation of 21 U.S.C. 841(a)(1), (b)(1)(B) (2006). months' The district court sentenced Clark to 252 a ten-month downward variance from the imprisonment, guidelines range. Counsel Clark timely appealed. has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), finding no meritorious grounds for appeal but questioning the reasonableness of Clark's sentence. Clark filed a pro se supplemental brief challenging his conviction on double jeopardy grounds and asserting claims of ineffective assistance of appellate counsel. Turning first to Clark's double jeopardy challenge, he contends that because he was convicted in state court for the same conduct that gave rise to the federal charges, his federal conviction is unconstitutional. We conclude that the dual sovereignty exception to the double jeopardy bar applies in this case and that Clark's federal conviction is constitutionally sound. See Heath v. Alabama, 474 U.S. 82, 89 (1985) ("[T]he Court has uniformly held that States are separate sovereigns with power respect to to the Federal is Government from because its each State's prosecute derived own `inherent sovereignty,' and not from the Federal Government.") (citation 2 Case: 09-5042 Document: 40 Date Filed: 11/04/2010 Page: 3 omitted); ("[T]he Rinaldi v. United does States, not deny 434 the U.S. 22, 28 (1977) Federal Constitution State and Governments the power to prosecute for the same act."). Appellate counsel questions Clark's sentence, but ultimately concludes that it is reasonable. reviews a sentence for reasonableness An appellate court under an abuse-of- discretion standard. (2007). This Gall v. United States, 552 U.S. 38, 51 requires consideration of both the Id. review procedural and substantive reasonableness of a sentence. First, the court must assess whether the district court properly calculated the guidelines range, considered the 18 U.S.C. 3553(a) (2006) factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. Id. at 49-50; see United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) ("[A]n individualized explanation must accompany every sentence."); United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). An extensive explanation is not required as long as the appellate court is satisfied "`that [the district court] has considered the parties' arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.'" United States v. Engle, 592 F.3d 495, 500 (4th Cir.) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)), cert. denied, 79 U.S.L.W. 3018 (U.S. Oct. 4, 2010) (No. 09-1512). Even if the sentence is procedurally reasonable, the court must consider the 3 Case: 09-5042 Document: 40 Date Filed: 11/04/2010 Page: 4 substantive totality of reasonableness the of the to sentence, see "examin[ing] the the circumstances whether sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in 3553(a)." United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). The guidelines district court an properly calculated analysis Clark's of the range, provided individualized 3553(a) factors as they apply to Clark's circumstances, and analyzed the arguments presented by the parties. the court granted a ten-month downward Furthermore, from the variance advisory guidelines range to credit Clark with the time served on his initial sentence in state court for the same conduct. conclude that Clark's sentence is reasonable. Finally, in his pro se supplemental brief, Clark We claims he received ineffective assistance of appellate counsel. Claims of ineffective assistance of counsel are generally not cognizable on direct appeal. 290, 295 (4th Cir. 1997). United States v. King, 119 F.3d Rather, to allow for adequate development of the record, a defendant must bring such claims in a 28 U.S.C.A. 2255 (West Supp. 2010) motion, unless the record conclusively establishes ineffective assistance. United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); King, 119 F.3d at 295. Because the record does not conclusively show that 4 Case: 09-5042 Document: 40 Date Filed: 11/04/2010 Page: 5 Clark's counsel was ineffective, we decline to consider Clark's claims 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 Clark's conviction and sentence. Clark's pro se motion for copies of documents. We deny court This requires that counsel inform Clark, in writing, of the right to petition review. the Supreme Court of the United States for further If Clark 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 Clark. facts and legal before contentions the court materials would decisional process. AFFIRMED 5

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