US v. Damien Antwon Evan

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:13-cr-00050-FL-1 Copies to all parties and the district court/agency. [999581594].. [14-4773]

Appeal: 14-4773

Doc: 23

Filed: 05/12/2015

Pg: 1 of 9

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4773

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAMIEN ANTWON EVANS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:13-cr-00050-FL-1)

Submitted:

April 29, 2015

Decided:

May 12, 2015

Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Dhamian A. Blue, BLUE STEPHENS & FELLERS LLP, Raleigh, North
Carolina, for Appellant.
Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 14-4773

Doc: 23

Filed: 05/12/2015

Pg: 2 of 9

PER CURIAM:
Damien
agreement,

Antwon
to

Evans

pled

possession

of

guilty,

a

pursuant

firearm

and

to

a

plea

ammunition

by

a

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012).
The

court

sentenced

Evans

to

188

months’

bottom of the Sentencing Guidelines range.

imprisonment,

the

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
raising

as

potential

issues

whether

the

court

abused

its

discretion in denying Evans’ motion for substitute counsel and
whether

various

aspects

of

Evans’

sentence

were

erroneous,

including Evans’ designation as an armed career criminal, the
application

of

§ 4B1.4(b)(3)(A)

U.S.
(2013),

Sentencing
and

the

denial

downward variance and/or departure.

Guidelines
of

the

Manual

motion

for

Evans has filed a pro se

supplemental brief, raising numerous issues, including whether
sentencing counsel provided effective assistance and whether the
court erred in sentencing him under the Armed Career Criminal
Act (“ACCA”).
We

We affirm.

review

a

district

court’s

ruling

substitute counsel for abuse of discretion.

on

a

motion

to

United States v.

Blackledge, 751 F.3d 188, 194 (4th Cir. 2014).

Three factors

are considered in reviewing the denial of such a motion:

“(1)

timeliness of the motion; (2) adequacy of the court’s inquiry
2

Appeal: 14-4773

Doc: 23

Filed: 05/12/2015

Pg: 3 of 9

[into the factual basis of defendant’s dissatisfaction]; and (3)
whether the attorney/client conflict was so great that it had
resulted in total lack of communication preventing an adequate
defense.”

Id.

(internal

quotation

marks

omitted).

These

factors are balanced “against the district court’s interest in
the orderly administration of justice.”
661

F.3d

189,

omitted).

191

We

(4th

conclude

Cir.
that

2011)
the

United States v. Perez,

(internal
court

quotation

did

not

marks

abuse

its

discretion, since Evans’ motion was made after the start of the
sentencing

hearing,

the

court

inquired

into

the

reasons

for

Evans’ motion and also questioned counsel before denying the
motion,

and

the

record

provides

no

evidence

of

an

attorney-

client conflict hindering communication.
Next, counsel and Evans contest whether Evans’ designation
as

an

armed

career

criminal

was

proper.

When

considering

whether a defendant was properly sentenced as an armed career
criminal, we review the district court’s legal conclusions de
novo and its factual findings for clear error.

United States v.

McDowell, 745 F.3d 115, 120 (4th Cir. 2014), cert. denied, 135
S. Ct. 942 (2015).

Because Evans raises this claim for the

first time on appeal, it is reviewed for plain error.

Henderson

v. United States, 133 S. Ct. 1121, 1126-27 (2013).
Under the ACCA, if a defendant is convicted of being a
felon in possession of a firearm and has sustained at least
3

Appeal: 14-4773

Doc: 23

Filed: 05/12/2015

Pg: 4 of 9

three prior convictions for violent felonies or serious drug
offenses committed on occasions different from one another, the
defendant

is

subject

§ 924(e)(1) (2012).

to

an

enhanced

sentence.

18

U.S.C.

Here, Evans pled guilty to being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),
and his presentence report noted that he previously pled guilty
to four common law robbery charges, which occurred on different
occasions from one another and each resulted in a sentence of
more

than

a

year.

These

felonies under the ACCA.

robbery

counts

constitute

violent

18 U.S.C. § 924(e)(2)(B)(ii); see also

United States v. Carmichael, 408 F. App’x 769, 770-71

(4th Cir.

2011) (No. 09-4963) (concluding that common law robbery under
North

Carolina

law

is

crime

of

violence).

Accordingly,

we

conclude that the district court correctly sentenced Evans as an
armed career criminal.
Next, counsel questions whether the district court erred in
applying an offense level of 34 after finding by a preponderance
of the evidence that Evans possessed the firearm in connection
with a crime of violence.

See USSG § 4B1.4(b)(3)(A).

Here, the

sentencing court concluded that Evans possessed the firearm and
ammunition in connection with the state offense of feloniously
fleeing to elude arrest.
(2013).
than

a

See N.C. Gen. Stat. § 20-141.5(a)-(b)

In determining that the offense was a felony rather
misdemeanor

under

North
4

Carolina

law,

the

sentencing

Appeal: 14-4773

Doc: 23

court

was

required

aggravating
141.5(b)

Filed: 05/12/2015

factors

to

find

Pg: 5 of 9

the

enumerated

in

presence
the

of

two

statute.

or
Id.

more
§ 20-

Based on evidence presented at sentencing, the court

found that at least two of the factors, reckless driving and
driving with his license revoked, § 20-141.5(b)(3), (5), were
present.

Evans

factors.

Thus,

offered
the

no

court’s

evidence
factual

to

dispute

findings

these

two

Evans

was

that

driving recklessly and without a license were supported by a
preponderance of the evidence and therefore were not clearly
erroneous.

See United States v. White, 771 F.3d 225, 235 (4th

Cir. 2014) (stating standard of review), cert. denied, __ U.S.
__, 83 U.S.L.W. 3743 (U.S. Mar. 23, 2015) (No. 14-8442).
We review de novo the court’s legal conclusion that Evans
possessed a firearm in connection with a crime of violence.

Id.

For purposes of USSG § 4B1.4(b)(3)(A), a crime of violence is
“any

offense

under

federal

or

state

law,

punishable

by

imprisonment for a term exceeding one year, that . . . involves
conduct

that

presents

injury to another.”
aggravating

factors,

a

serious

potential

USSG § 4B1.2(a)(2).
Evans’

actions

risk

of

physical

Coupled with the two

constituted

the

state

criminal offense of felonious fleeing to elude arrest under N.C.
Gen. Stat. § 20-141.5(a)-(b).

The Supreme Court has previously

stated that “[f]elony vehicle flight is a violent felony for
purposes of [the] ACCA.”

Sykes v. United States, 131 S. Ct.
5

Appeal: 14-4773

Doc: 23

Filed: 05/12/2015

Pg: 6 of 9

2267, 2277 (2011); see also United States v. Scott, 521 F. App’x
112, 114 (4th Cir. 2013) (per curiam) (holding that fleeing to
elude arrest under N.C. Gen. Stat. § 20-141.5 constitutes crime
of violence for purposes of USSG § 4B1.4(b)(3)(A)). Therefore,
the district court correctly concluded that Evans committed a
crime

of

firearm,

violence
meriting

in

connection

application

of

with
an

his

possession

offense

level

of

of
34

a
as

provided by § 4B1.4(b)(3)(A).
Finally, counsel questions whether Evans’ sentence of 188
months’

imprisonment

was

reasonable,

focusing

specifically

on

whether the court erred when it denied the motion for downward
departure

and/or

variance.

We

apply

“an

abuse-of-discretion

standard” when reviewing a sentence for reasonableness.
United States, 552 U.S. 38, 51 (2007).
district

court’s

sentence

for

Gall v.

We first examine the

“significant

procedural

error,”

including “failing to calculate (or improperly calculating) the
Guidelines range, . . . failing to consider the [18 U.S.C.]
§ 3553(a)

factors,

selecting

a

sentence

based

on

clearly

erroneous facts, or failing to adequately explain the chosen
sentence.”

Id.

If we find no significant procedural error, we examine the
substantive reasonableness of a sentence under “the totality of
the

circumstances.”

Id.

The

sentence

imposed

must

be

“sufficient, but not greater than necessary,” to satisfy the
6

Appeal: 14-4773

Doc: 23

Filed: 05/12/2015

goals of sentencing.

Pg: 7 of 9

18 U.S.C. § 3553(a).

We presume on appeal

that a within-Guidelines sentence is substantively reasonable.
United States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert.
denied, 135 S. Ct. 421 (2014).

The defendant can rebut that

presumption only “by showing that the sentence is unreasonable
when measured against the 18 U.S.C. § 3553(a) factors.”
We

conclude

procedural

that

the

requirements

Guidelines

range;

allocution,

and

district

by

considering
the

court

correctly
the

§ 3553(a)

Id.

satisfied

calculating

parties’
factors;

Evans’

arguments,
and

the

Evans’

providing

an

individualized assessment fully grounded in those factors.

As

to substantive reasonableness, we conclude that Evans has failed
to

rebut

the

presumption

within-Guidelines

of

accorded

to

As

sentence.

reasonableness

by

court’s

indicated

the

his

statements on record, the court found that the totality of the
circumstances

warranted

a

sentence

at

the

bottom

of

Guidelines range but not a downward variance or departure.

the
Such

a determination is within the discretion of the sentencing court
and is not an abuse of discretion.
Evans
was

also

contends

ineffective.

conclusively

appears

that

Unless
on

the

sentencing
an
face

counsel’s

attorney’s
of

the

assistance

ineffectiveness

record,

ineffective

assistance claims are not generally addressed on direct appeal.
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008); see
7

Appeal: 14-4773

United

Doc: 23

States

Filed: 05/12/2015

v.

Smith,

640

Pg: 8 of 9

F.3d

580,

587

(4th

Cir.

2011)

(stating that ineffective assistance is conclusively established
where

appellate

court

“need

not

look

beyond

the

trial

court

record brought . . . in a direct appeal”); see also Strickland
v. Washington, 466 U.S. 668, 687 (1984) (providing standard for
ineffective-assistance claims).

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

States

2010).

v.

Baptiste,

596

F.3d

214,

216

n.1

(4th

Cir.

Because the record does not conclusively establish ineffective
assistance of counsel, we conclude that these claims should be
raised, if at all, in a § 2255 motion.
We have reviewed the record and the other arguments Evans
raises in his pro se supplemental brief and conclude that they
are without merit.
judgment.
writing,

We therefore affirm the district court’s

This court requires that counsel inform Evans, in
of

the

right

to

petition

United States for further review.

the

Supreme

Court

of

the

If Evans requests that a

petition be filed, but counsel 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 Evans.

8

Appeal: 14-4773

Doc: 23

Filed: 05/12/2015

Pg: 9 of 9

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

9