US v. Ricky Gunter

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00053-JAB-1. Copies to all parties and the district court. [999567580]. [14-4725]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4725

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RICKY GUNTER, a/k/a Veejay Gunter,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:14-cr-00053-JAB-1)

Submitted:

April 16, 2015

Decided:

April 20, 2015

Before AGEE and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, Tiffany T. Jefferson,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Lisa Blue Boggs, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Ricky

Gunter

appeals

from

his

conviction

and

220-month

sentence imposed pursuant to his guilty plea to distribution of
cocaine base.

Gunter’s counsel filed an Anders v. California,

386 U.S. 738 (1967) brief, stating that he found no meritorious
grounds

for

appeal

reasonableness

of

but

Gunter’s

questioning

sentence.

Gunter

the

substantive

filed

a

pro

se

brief supplementing counsel’s argument and also averring that
counsel was ineffective at sentencing.

We affirm.

Gunter first contends that his sentence was greater than
necessary to accomplish the goals of sentencing.

While counsel

provides no specific argument, Gunter contends that the district
court did not adequately consider the victimless, nonviolent,
and low-level nature of his crime.

Gunter further asserts that

the district court did not adequately take into account the goal
of rehabilitation and the overcrowding of prisons.
We review sentences for substantive reasonableness “under a
deferential

abuse-of-discretion

standard,”

“totality of the circumstances.”
U.S. 38, 41, 51 (2007).

considering

the

Gall v. United States, 552

If the sentence is within the properly

calculated Guidelines range, we presume that the sentence is
substantively reasonable.
583,

590

(4th

Cir.

United States v. Yooho Weon, 722 F.3d

2013).

Because

there

is

a

range

of

permissible outcomes for any given case, an appellate court must
2

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resist

the

sentences

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temptation
and

judgment

so

rather
long

to

“pick

must

as

it

Pg: 3 of 4

and

“defer
falls

rationally available choices.”

choose”

to

the

within

the

among

possible

district
realm

court's
of

these

United States v. McComb, 519

F.3d 1049, 1053 (10th Cir. 2007).
Here, the district court explicitly determined that Gunter’s
criminal behavior was serious and that his prior sentences had
not deterred him.

The court also considered his acceptance of

responsibility and desire for rehabilitation.

In addition, the

presentence report, to which Gunter did not object, described
repeated involvement in serious and violent offenses and failed
attempts at rehabilitation.

Gunter’s argument is essentially

just a disagreement with the district court’s weighing of the
statutory

factors.

Because

Gunter

has

failed

to

rebut

the

presumption of reasonableness, we conclude that his sentence is
substantively reasonable.
We

decline

ineffective.

to

reach

Gunter’s

claim

that

counsel

was

Unless an attorney’s ineffectiveness conclusively

appears on the face of the record, ineffective assistance claims
are not generally addressed on direct appeal.
Benton, 523 F.3d 424, 435 (4th Cir. 2008).
should

be

raised

in

a

motion

brought

United States v.

Instead, such claims

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
3

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Cir. 2010).

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Because the record does not conclusively establish

ineffective assistance of counsel, we conclude that this claim
should be raised, if at all, in a § 2255 motion.
In
record

accordance
in

this

meritorious

with

case

grounds

Anders,

and

for

have

we

found

appeal.

district court’s judgment.

have

reviewed
no

other

Accordingly,

we

the

entire

potentially
affirm

the

This court requires that counsel

inform Gunter, in writing, of his right to petition the Supreme
Court

of

the

United

States

for

further

review.

If

Gunter

requests that a petition be filed, but counsel believes that
such a petition would be frivolous, counsel may move in this
court

for

leave

to

withdraw

from

representation.

Counsel’s

motion must state that a copy thereof was served on Gunter.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

4