US v. Andrew Owen

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:13-cr-00069-F-1 Copies to all parties and the district court/agency. [999665990].. [15-4017]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4017

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDREW DAVID OWENS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Fox, Senior
District Judge. (5:13-cr-00069-F-1)

Submitted:

August 31, 2015

Decided:

September 24, 2015

Before NIEMEYER, MOTZ, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Daniel Johnson, Drew Nelson, WILLIS JOHNSON & NELSON PLLC,
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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Andrew David Owens pled guilty to failure to register as a
sex offender, in violation of 18 U.S.C. § 2250 (2012), and was
sentenced to 41 months’ imprisonment.

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 Owens’ sentence is reasonable.

Owens

has submitted letters that we construe as his pro se brief.
Owens alleges that his plea was involuntary, the district court
judge

was

biased,

his

extradition

to

North

Carolina

was

unlawful, he could not be convicted of this offense in North
Carolina

because

the

state

has

not

enacted

the

Sex

Offender

Registration and Notification Act (SORNA), and assorted claims
of ineffective assistance of counsel.

We affirm.

Although Owens claims that his plea was coerced, his sworn
statements at the plea hearing clearly belie his claim.

See

Fields v. Att’y Gen. of Md., 956 F.2d 1290, 1299 (4th Cir. 1992)
(“Absent

clear

and

convincing

evidence

to

the

contrary,

a

defendant is bound by the representations he makes under oath
during a plea colloquy.”).

Owens’ claim of judicial bias also

is without merit, as he has failed to identify any act of the
district court demonstrating bias.

Liteky v. United States, 510

U.S. 540, 555 (1994) (“[J]udicial rulings alone almost never
constitute a valid basis for a bias or partiality motion.”).
2

As

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a result of his guilty plea, Owens waived his claim regarding
the transfer from Pennsylvania to North Carolina.
v. Henderson, 411 U.S. 258, 267 (1973).
challenge

regarding

SORNA’s

See Tollett

Additionally, Owens’

application

in

North

Carolina

is

foreclosed by our decision in United States v. Gould, 568 F.3d
459 (4th Cir. 2009).
Turning

to

reasonableness,
standard.”

Owens’

sentence,

applying

“a

we

review

deferential

it

for

abuse-of-discretion

Gall v. United States, 552 U.S. 38, 41 (2007).

This

review entails appellate consideration of both the procedural
and substantive reasonableness of the sentence.

Id. at 51.

In

determining procedural reasonableness, we consider whether the
district

court

properly

calculated

the

advisory

Sentencing

Guidelines range, gave the parties an opportunity to argue for
an

appropriate

(2012)

factors,

sentence.
If

sentence,
and

considered

sufficiently

the

18

U.S.C.

explained

the

§ 3553(a)
selected

Id. at 49-51.
there

substantive

are

no

procedural

reasonableness

of

the

totality of the circumstances.”

errors,

we

sentence,

Id. at 51.

consider

evaluating

the
“the

In the case of a

sentence above the applicable Guidelines range, we take into
account “whether the sentencing court acted reasonably both with
respect

to

its

decision

respect

to

the

extent

of

to

impose

the

such

divergence
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a

sentence

from

the

and

with

sentencing

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range.”

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United States v. Washington, 743 F.3d 938, 944 (4th

Cir. 2014) (internal quotation marks omitted).

However, we give

due deference to the sentencing court’s decision because that
court “has flexibility in fashioning a sentence outside of the
Guidelines range,” and need only “set forth enough to satisfy
the

appellate

court

that

[it]

has

considered

the

parties’

arguments and has a reasoned basis for . . . [its decision].”
United

States

v.

Diosdado-Star,

630

F.3d

359,

364

(4th

Cir.

2011).
We discern no error in Owens’ sentence.
reasonableness,
Guidelines

the

range,

district

court

considered

the

properly
parties’

As to procedural
calculated
arguments,

Owens’
allowed

Owens an opportunity to allocute, and provided an individualized
explanation
§ 3553(a)

for

the

factors.

sentence

it

imposed,

grounded

Further,

the

sentence

is

in

the

substantively

reasonable as the court’s decision to depart and the four-month
upward departure were well-reasoned, relying explicitly on U.S.
Sentencing Guidelines Manual § 4A1.3(a)(1) (2014), and the facts
from Owens’ undisputed presentence report.
Finally, Owens raises a variety of ineffective-assistanceof-counsel

claims.

Unless

an

attorney’s

ineffectiveness

conclusively appears on the face of the record, ineffectiveassistance claims are not generally addressed on direct appeal.
United States v. Benton, 523 F.3d 424, 435 (4th
4

Cir. 2008).

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Instead,

such

pursuant

to

sufficient

claims
28

should

U.S.C.

development

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be

of

the

in

(2012),

§ 2255

raised

in

record.

a

motion

order

to

United

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

brought
permit

States

v.

Because there

is no demonstrated evidence of ineffective assistance of counsel
on the 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.

We

therefore

affirm

the

district

court’s

judgment.

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

If Owens requests that a petition be filed, but

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

may

move

representation.

in

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Owens.
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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