US v. Archie Evan

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:12-cr-00575-RBH-1 Copies to all parties and the district court/agency. [999616548]. [14-4537]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4537

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARCHIE LARUE EVANS,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:12-cr-00575-RBH-1)

Submitted:

June 29, 2015

Before KING and
Circuit Judge.

KEENAN,

Decided:

Circuit

Judges,

and

July 8, 2015

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.

Jessica Salvini, SALVINI & BENNETT, LLC, Greenville, South
Carolina, for Appellant.
William E. Day, II, Assistant United
States Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Pursuant to a written plea agreement, Archie LaRue Evans
pled guilty to one count of mail fraud, in violation of 18
U.S.C. § 1341 (2012), and one count of conspiracy to structure
transactions

with

a

financial

institution

to

evade

currency

reporting requirements, in violation of 18 U.S.C. § 371 (2012).
The district court sentenced Evans to 84 months in prison, a
slight downward variance from the 87 to 108-month Sentencing
Guidelines range.
Evans’

Evans timely appealed.

counsel

California,

386

has

U.S.

filed

738

a

brief

(1967),

pursuant

stating

that

to

Anders

there

are

v.
no

meritorious grounds for appeal, but asserting that Evans did not
knowingly

and

voluntarily

waive

his

right

to

questioning the reasonableness of Evans’ sentence.

appeal,

and

Counsel also

advances claims of ineffective assistance of trial counsel and
prosecutorial

misconduct.

For

the

reasons

that

follow,

we

affirm.
As a preliminary matter, Evans’ plea agreement contained a
waiver-of-appellate-rights provision.

However, the Government

has not asserted the appellate waiver as a basis for dismissing
this

appeal

waivers.

and

we

decline

to

sua

sponte

enforce

appellate

See generally, United States v. Blick, 408 F.3d 162,

168 (4th Cir. 2005) (citing United States v. Brock, 211 F.3d 88,

2

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90 n.1 (4th Cir. 2000)).

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We therefore need not consider whether

Evans knowingly and voluntarily waived his right to appeal.
We

next

substantive

review

Evans’

reasonableness

discretion standard.”
(2007).

sentence

for

“under

a

both

procedural

deferential

and

abuse-of-

Gall v. United States, 552 U.S. 38, 41

We must “ensure that the district court committed no

significant

procedural

error,

such

calculating[] the Guidelines range.”

as

.

.

Id. at 51.

.

improperly

If there is no

significant procedural error, we then consider the sentence’s
substantive

reasonableness

under

“the

totality

of

the

circumstances, including the extent of any variance from the
Guidelines range.”

Id.

properly

Guidelines

calculated

We presume that a sentence below a
range

is

reasonable.

United

States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014), cert.
denied, 135 S. Ct. 421 (2014).

A defendant can rebut this

presumption only “by showing that the sentence is unreasonable
when

measured

factors.”

against

Id.

the

[18

U.S.C.]

§

3553(a)

[(2012)]

After reviewing the presentence report and the

sentencing transcript, we conclude that Evans’ below-Guidelines
sentence is both procedurally and substantively reasonable.
Evans
attorney

also
and

ineffective.
counsel,

asserts
the

that

both

court-appointed

his

privately-retained

public

defender

were

To succeed on a claim of ineffective assistance of

Evans

must

show

that

(1)
3

counsel’s

performance

was

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constitutionally

deficient

was prejudicial.
(1984).

To

and

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(2)

such

deficient

performance

Strickland v. Washington, 466 U.S. 668, 687
satisfy

the

performance

prong,

Evans

must

demonstrate that counsel’s performance fell below an objective
standard of reasonableness under prevailing professional norms.
Id.

at

688.

The

prejudice

prong

is

satisfied,

within

the

context of a guilty plea, if Evans can demonstrate “a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”

Hill

v. Lockhart, 474 U.S. 52, 59 (1985).
Unless an attorney’s ineffectiveness conclusively appears
on

the

face

of

the

record,

such

claims

are

not

generally

addressed on direct appeal, United States v. Benton, 523 F.3d
424, 435 (4th Cir. 2008), but rather 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 States v.

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

Because the

record does not conclusively establish ineffective assistance of
counsel, we conclude that Evans should raise these claims, if at
all, in a § 2255 motion.
Finally,

Evans

contends

that

occurred throughout the proceedings.
record for his claims.

4

prosecutorial

misconduct

We find no support in the

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accordance

with

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Anders,

we

have

reviewed

the

entire

record in this case and have found no meritorious issues for
appeal. *

We therefore affirm Evans’ convictions and sentence.

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

If Evans requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then
counsel

may

move

representation.

in

and

materials

legal
before

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Evans.
facts

this

We dispense with oral argument because the

contentions

are

adequately

this

and

argument

court

presented

would

not

in

the

aid

the

decisional process.
AFFIRMED

*

Evans filed a pro se supplemental brief asserting numerous
challenges to his guilty plea and sentence.
We have reviewed
Evans’ pro se supplemental brief and conclude that he is not
entitled to relief on any of the claims raised.

5