US v. Donnie Moyer

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00029-CCE-1 Copies to all parties and the district court. [999621893]. [14-4903]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4903

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONNIE LOMACK MOYER,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:14-cr-00029-CCE-1)

Submitted:

June 22, 2015

Decided:

July 16, 2015

Before SHEDD, KEENAN, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Sarah Jessica Farber, FARBER LAW FIRM, Raleigh, North Carolina,
for Appellant. Robert Albert Jamison Lang, Assistant United States
Attorney, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Donnie Lomack Moyer pled guilty, pursuant to a plea agreement,
to possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1) (2012).
to

77

months’

imprisonment,

Sentencing Guidelines range.

The district court sentenced Moyer
the

bottom

of

Moyer’s

advisory

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
Moyer’s sentence is substantively reasonable.
pro

se

supplemental

brief,

also

Moyer has filed a

questioning

the

substantive

reasonableness of his sentence and asserting that trial counsel
rendered ineffective assistance.

We affirm.

We review a sentence for reasonableness “under a deferential
abuse-of-discretion standard.”
38, 41 (2007).
calculated
reasonable.

Gall v. United States, 552 U.S.

“Any sentence that is within or below a properly

Guidelines

range

is

presumptively

[substantively]

Such a presumption can only be rebutted by showing

that the sentence is unreasonable when measured against the 18
U.S.C. § 3553(a) [(2012)] factors.”

United States v. Louthian,

756 F.3d 295, 306 (4th Cir.) (citation omitted), cert. denied, 135
S. Ct. 421 (2014).
Moyer has not rebutted the presumption that his withinGuidelines sentence is substantively reasonable.

The district

court was sufficiently sensitive to the issues Moyer faced after
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the

military,

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recommending

that

Moyer

undergo

psychological, behavioral, and substance abuse treatment while
incarcerated.

The court also reasonably concluded that Moyer’s

declaration that he was a changed man did not square with Moyer’s
recent spurt of criminal activity.

Importantly, the court did not

ignore counsel’s argument for a downward variance; rather, the
court explicitly considered the mitigating factors when deciding
to impose a sentence at the bottom of the advisory Guidelines
range.
impose

Finally, it was well within the court’s discretion to
this

federal

consecutively
marijuana.

to

sentence

Moyer’s

for

state

possession

sentence

for

of

a

firearm

possession

of

See U.S. Sentencing Guidelines Manual § 5G1.3(c), p.s.

(2013) (providing court discretion to run sentence consecutively
to undischarged term of imprisonment when charges are unrelated).
In his pro se supplemental brief, Moyer raises a variety of
ineffective assistance of counsel claims.

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 States v. Baptiste,

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

Because there is no

demonstrated evidence of ineffective assistance of counsel on the
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face of the record, these claims should be raised, if at all, in
a § 2255 motion.
In accordance with Anders, we have reviewed the entire record
in this case and have found no meritorious grounds for appeal.
therefore

affirm

the

district

court’s

judgment.

This

We

court

requires that counsel inform Moyer, in writing, of his right to
petition the Supreme Court of the United States for further review.
If Moyer 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 Moyer.

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

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