US v. Brian Fanary

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to file supplemental brief(s) [998713527-2]. Originating case number: 5:10-cr-00003-1. Copies to all parties and the district court/agency. [998781171]. [10-5101]

Appeal: 10-5101

Document: 50

Date Filed: 02/06/2012

Page: 1 of 5

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5101

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN FANARY, a/k/a Brian Marshall,
Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.
Irene C. Berger,
District Judge. (5:10-cr-00003-1)

Submitted:

January 9, 2012

Decided:

February 6, 2012

Before WILKINSON, AGEE, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Dennis M. Hart, Washington, D.C., for Appellant.
R. Booth
Goodwin II, United States Attorney, Miller Bushong, Assistant
United States Attorney, Beckley, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 10-5101

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Date Filed: 02/06/2012

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PER CURIAM:
Pursuant to a plea agreement, Brian Fanary pled guilty
to possession with intent to distribute a quantity of oxycodone,
in violation of 21 U.S.C. § 841(a)(1) (2006), and possession of
a

firearm

by

a

convicted

felon,

§§ 922(g)(1), 924(a)(2) (2006).

in

violation

of

18

U.S.C.

The district court sentenced

Fanary to eighty-five months in prison, seven months above the
advisory Guidelines range.
Fanary
assistance

of

first
counsel

Fanary timely appealed his sentence.

argues
when

that
his

he

was

defense

denied

attorney

effective
failed

to

challenge the drug quantity attributed to him for sentencing
purposes,

contending

personal

use.

that

Unless

a

portion

an

of

those

were

for

ineffectiveness

attorney’s

drugs

is

conclusively apparent on the face of the record, ineffective
assistance claims are generally not addressed on direct appeal.
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008);
United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999)
(providing standard and noting that ineffective assistance of
counsel claims generally should be raised by motion under 28
U.S.C.A. § 2255 (West Supp. 2011)).
falls

short

of

this

exacting

The record in this case

standard.

Therefore,

Fanary’s

ineffective assistance claim is not cognizable on direct appeal.
Alternatively, Fanary challenges the reasonableness of
his

sentence

by

arguing

that

there
2

could

be

no

legitimate

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finding of the drug quantity where the defense of personal use
was

never

applying
States,

raised.
an

552

We

abuse
U.S.

of
38,

review

a

sentence

for

discretion

standard.

51

see

(2007);

Gall

also

United

Layton, 564 F.3d 330, 335 (4th Cir. 2009).
examine

the

reasonableness,

sentence

for

“significant

v.

United

States

v.

In so doing, we

procedural

error,”

including “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to

consider

selecting

a

the

[18

sentence

U.S.C.]
based

on

§ 3553(a)
clearly

[(2006)]

erroneous

failing to adequately explain the chosen sentence.”

factors,
facts,

or

Gall, 552

U.S. at 51.
The

Government

bears

the

burden

of

proving,

by

a

preponderance of the evidence, the drug quantity attributable to
a defendant.
Cir.

2002).

calculations
district

United States v. Carter, 300 F.3d 415, 425 (4th
Generally,
under

court’s

in

reviewing

the

Guidelines,

this

legal

conclusions

de

findings for clear error,”

the

district

Court
novo

court’s

“review[s]

and

its

the

factual

United States v. Manigan, 592 F.3d

621, 626 (4th Cir. 2010) (internal quotation marks and citation
omitted), and will “find clear error only if, on the entire
evidence, we are left with the definite and firm conviction that
a mistake has been committed.”

Id. at 631 (internal quotation

3

Appeal: 10-5101

marks

Document: 50

and

Date Filed: 02/06/2012

citation

omitted).

Page: 4 of 5

However,

because

he

failed

to

object to the district court’s calculation of drug quantity at
sentencing, Fanary’s claim is reviewed for plain error.

United

States v. Blatstein, 482 F.3d 725, 731 (4th Cir. 2007).
Rule

32(i)(3)(A)

of

the

Federal

Rules

of

Criminal

Procedure permits a district court to “accept any undisputed
portion of the presentence report as a finding of fact.”
R. Crim. P. 32(i)(3)(A).
to

a

finding

in

the

Fed.

Moreover, even if a defendant objects

PSR,

in

the

absence

of

an

affirmative

showing that the information is not accurate, the court is “free
to adopt the findings of the [PSR] without more specific inquiry
or explanation.”

United States v. Love, 134 F.3d 595, 606 (4th

Cir. 1998) (internal quotation marks omitted).
Here, there were no objections to the drug quantities
attributed to Fanary, much less any affirmative showing that the
information in the PSR was not accurate.

We therefore conclude

that the district court did not err, plainly or otherwise, by
relying on the undisputed facts in the PSR to determine the drug
quantity attributed to Fanary for sentencing purposes and that,
accordingly, Fanary’s sentence is reasonable.
For

these

reasons,

we

affirm

Fanary’s

sentence.

Fanary’s motion to file a pro se supplemental brief is denied.
We

dispense

with

oral

argument

4

because

the

facts

and

legal

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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED

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