United States of America v. Jermaine Baine

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cr-00255-NCT-2 Copies to all parties and the district court/agency. [999517878]. [14-4411]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4411

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERMAINE LONNIE BAINES,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge. (1:13-cr-00255-NCT-2)

Submitted:

December 10, 2014

Decided:

January 27, 2015

Before DUNCAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Sarah Jessica Farber, FARBER LAW FIRM, Raleigh, North Carolina,
for Appellant. Kyle David Pousson, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jermaine Lonnie Baines pled guilty pursuant to a plea
agreement to conspiracy to interfere with commerce by robbery,
in violation of 18 U.S.C. § 1951(a) (2012), and possession of
firearms

in

trafficking

furtherance
crime,

in

924(c)(1)(A)(i) (2012).
Guidelines

range

of

at

a

crime

of

violation

violence

of

18

and

U.S.C.

a

drug
§§ 2,

The district court calculated Baines’
262

to

327

months’

imprisonment,

U.S. Sentencing Guidelines Manual (2013), and sentenced Baines
to a total prison term of 262 months’ imprisonment.
On

appeal,

counsel

has

filed

a

brief

pursuant

to

Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but raising as an issue
for review whether the district court abused its discretion in
imposing sentence.

Baines has filed a pro se supplemental brief

in which he challenges the district court’s calculation of his
Guidelines

range

assistance.

The

and

the

effectiveness

Government

of
to

declined

trial
file

counsel’s
a

brief.

We affirm.
We review Baines’ sentence for reasonableness “under a
deferential
States,

552

abuse-of-discretion
U.S.

38,

41,

51

standard.”
(2007).

This

Gall

v.

review

United
entails

appellate consideration of both the procedural and substantive
reasonableness of the sentence.
2

Id. at 51.

In determining

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procedural
court

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reasonableness,

properly

range,

gave

we

calculated

the

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consider

whether

the
an

opportunity

parties

defendant’s

the

advisory
to

district
Guidelines

argue

for

an

appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012)
factors, selected a sentence based on clearly erroneous facts,
and sufficiently explained the selected sentence.
If

the

sentence

is

free

of

Id. at 49–51.

“significant

procedural

error,” we review it for substantive reasonableness, “tak[ing]
into account the totality of the circumstances.”
the

sentence

Guidelines
sentence

is

range,
is

within
we

or

apply

below

a

substantively

the

Id. at 51.

properly

presumption

on

reasonable.

calculated

appeal

United

If

that

the

States

v.

Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421

(2014).

Such

a

presumption

is

rebutted

only

if

the

defendant shows “that the sentence is unreasonable when measured
against the 18 U.S.C. § 3553(a) factors.”

Id.

In this case, the district court correctly calculated
and

considered

from

counsel,

the
and

advisory
heard

Guidelines

allocution

range,

from

heard

Baines.

argument

The

court

explained that the within-Guidelines sentence was warranted in
light of the nature and circumstances of Baines’ offense conduct
and his history and characteristics.

18 U.S.C. § 3553(a)(1).

We reject as without merit counsel’s argument that the 262-month
sentence

is

substantively

unreasonable
3

in

light

of

Baines’

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personal,

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health,

and

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offense

circumstances

and

the

district

court’s alleged failure to afford “enough weight” to the role
Government agents played in Baines’ offense conduct because it
essentially asks this court to substitute its judgment for that
of the district court.

While this court may have weighed the

§ 3553(a) factors differently had it imposed sentence in the
first instance, we defer to the district court’s decision that a
262-month
Baines’

sentence

case.

appellate
court’s

achieved

See

courts
decision

Gall,

“must

the
552

give

that

the

purposes

U.S.

due

at

of

51

(explaining

deference

§ 3553(a)

sentencing

to

the

factors,

on

in
that

district
a

whole,

justify” the sentence imposed); United States v. Rivera-Santana,
668 F.3d 95, 105 (4th Cir. 2012) (stating it was within district
court’s

discretion

aggravating

factors

to

accord

in

more

defendant’s

weight

case

and

to

a

host

of

decide

that

the

sentence imposed would serve the § 3553 factors on the whole).
In

light

of

the

“extremely

broad”

discretion

afforded

to

a

district court in determining the weight to be given each of the
§ 3553(a)

factors

in

imposing

sentence,

United

States

v.

Jeffery, 631 F.3d 669, 679 (4th Cir. 2011), Baines fails to
overcome

the

presumption

that

his

Guidelines

sentence

is

substantively reasonable.
In his pro se supplemental brief, Baines also claims
that

trial

counsel

rendered

ineffective
4

assistance.

After

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review

of

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the

resolution

on

record,
direct

we

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find

appeal.

this

claim

Because

inappropriate

the

record

does

for
not

conclusively establish ineffectiveness of counsel, Baines must
assert such a claim, if at all, in a motion pursuant to 28 U.S.C
§ 2255 (2012).

United States v. Baptiste, 596 F.3d 214, 216 n.1

(4th Cir. 2010).
Finally, in accordance with Anders, we have reviewed
the remainder of the record in this case and have found no
meritorious issues for appeal.
court’s

judgment.

This

We therefore affirm the district

court

requires

that

counsel

inform

Baines, in writing, of the right to petition the Supreme Court
of the United States for further review.
that

a

petition

be

filed,

but

counsel

If Baines requests

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 was served on Baines.
We dispense with oral argument because the facts and
legal
before

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

5