US v. Jarvis Cunningham

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:13-cr-00507-TMC-1 Copies to all parties and the district court/agency. [999496039].. [14-4463]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4463

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JARVIS SENTIEL CUNNINGHAM,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.
Timothy M. Cain, District
Judge. (7:13-cr-00507-TMC-1)

Submitted:

December 16, 2014

Before DUNCAN
Circuit Judge.

and

DIAZ,

Circuit

Decided:

Judges,

December 18, 2014

and

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.

Benjamin
T.
Stepp,
Assistant
Greenville, South Carolina, for
Sherard, Assistant United States
Carolina, for Appellee.

Federal
Public
Defender,
Appellant.
Carrie Fisher
Attorney, Greenville, South

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jarvis Sentiel Cunningham pled guilty, without a plea
agreement,

to

possession

with

intent

to

distribute

and

distribution of a quantity of cocaine base, in violation of 21
U.S.C.

§ 841(a)(1)

Cunningham

to

(2012).

151

months’

advisory Guidelines range.

The

district

imprisonment,

court

the

sentenced

bottom

of

his

On appeal, counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious grounds for appeal but questioning
whether

Cunningham’s

sentence

is

reasonable.

Cunningham

has

filed a pro se supplemental brief, challenging his conviction
and sentence.
We

We affirm.
review

“under

a

United

States,

Cunningham’s

deferential

procedurally
defendant’s

552

abuse-of-discretion
U.S.

reasonable
advisory

sentence

if

38,

41

the

court

Guidelines

for

standard.”

(2007).

A

properly

range,

reasonableness

gives

Gall

v.

sentence

is

calculates

the

the

parties

an

opportunity to argue for an appropriate sentence, considers the
18 U.S.C. § 3553(a) (2012) factors, does not rely on clearly
erroneous

facts,

sentence.

Id.

transcript

and
at

pursuant

sufficiently

49-51.
to

After

Anders,

we

sentence is procedurally reasonable.

explains
reviewing

conclude

the
the

that

selected
sentencing

Cunningham’s

Cunningham has also failed

to rebut the presumption that his within-Guidelines sentence is
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substantively reasonable.

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See United States v. Louthian, 756

F.3d 295, 306 (4th Cir.) (explaining presumption), cert. denied,
135 S. Ct. 421 (2014).
Cunningham

argues

in

his

pro

se

supplemental

brief

that counsel rendered ineffective assistance by misadvising him
of

the

potential

penalties.

Unless

an

attorney’s

ineffectiveness conclusively appears on the face of the record,
ineffective

assistance

direct appeal.
Cir. 2008).

claims

are

not

generally

addressed

on

United States v. Benton, 523 F.3d 424, 435 (4th

Instead, such claims should be raised in a motion

brought pursuant to 28 U.S.C. § 2255 (2012), in order to permit
sufficient

development

of

the

record.

United

Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).

States

v.

Because there

is no conclusive evidence of ineffective assistance of counsel
on the face of the record, we conclude that Cunningham’s claim
should be raised, if at all, in a § 2255 motion.
Finally, Cunningham asserts in his pro se supplemental
brief that his conviction violated the Constitution because his
drug dealing did not affect interstate commerce.

We conclude

that Cunningham’s conviction was well within the bounds of the
Constitution
Leshuk,

65

and

reject

F.3d

1105,

this

claim.

1111-12

(4th

See

United

Cir.

1995)

Commerce Clause challenge to § 841(a)(1)).

3

States

v.

(rejecting

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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious grounds for
appeal.

We

therefore

affirm

the

district

court’s

judgment.

This court requires that counsel inform Cunningham, in writing,
of the right to petition the Supreme Court of the United States
for further review.
filed,

but

counsel

If Cunningham requests that a petition be
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 Cunningham.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED

4