US v. Robert Smith

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00166-WO-1 Copies to all parties and the district court/agency. [999992623].. [16-4283]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4283

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT LEE SMITH,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., Chief District Judge. (1:15-cr-00166-WO-1)

Submitted:

November 29, 2016

Decided:

December 22, 2016

Before TRAXLER, DIAZ, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, Kathleen A. Gleason,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Terry Michael Meinecke, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Robert Lee Smith appeals from his conviction and 106-month
sentence entered pursuant to the jury verdict finding him guilty
of possession of a firearm by a convicted felon.

On appeal,

counsel has filed a brief under Anders v. California, 386 U.S.
738 (1967), concluding that there are no meritorious issues but
raising the issue of whether Smith’s sentence is substantively
unreasonable.

Smith filed a pro se supplemental brief stating

that he received ineffective assistance of trial and appellate
counsel.

We affirm.

On appeal, counsel contends that the district court erred
by not giving sufficient weight to Smith’s age and cognitive
issues
review

related
the

§ 3553(a)

to

alcohol

reasonableness

(2012)

for

abuse

when

fashioning

of

a

of

his

sentence

sentence.

under

discretion.

18

United

We

U.S.C.

States

v.

Lymas, 781 F.3d 106, 111 (4th Cir. 2015) (citing Gall v. United
States, 552 U.S. 38, 41 (2007)).

We presume that a sentence

within the Guidelines range is substantively reasonable.
States

v.

Susi,

674

F.3d

278,

289

(4th

Cir.

United

2012).

The

presumption can only be rebutted by showing that the sentence is
unreasonable

when

measured

against

the

§

3553(a)

factors.

United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
Based on the totality of the circumstances, we find that
Smith

failed

to

rebut

the

presumption
2

that

his

sentence

is

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reasonable when measured against the § 3553(a) factors, and we
must give due deference to the court’s reasoned and reasonable
decision
imposed.

that

those

factors

justified

the

sentence

that

it

See United States v. Diosdado-Star, 630 F.3d 359, 367

(4th Cir. 2011) (citation and quotation marks omitted).

The

district court specifically considered the factors relied upon
by Smith and balanced them against the other factors to arrive
at a sentence below that argued for by the Government.

Further,

Smith provides no reason why his age and alcohol abuse should
outweigh his dangerous, repetitive criminal behavior.
conclude
request

that

sentence

for

the
a

towards

district

lower
the

court

sentence
lower

reasonably

and

end

of

rejected

reasonably
his

Thus, we
Smith’s

determined

Guidelines

range

a
was

appropriate in this case.
In his pro se supplemental brief, Smith contends that he
received ineffective assistance of trial and appellate counsel.
“It is well established that a defendant may raise a claim of
ineffective

assistance

of

counsel

in

the

first

instance

on

direct appeal if and only if it conclusively appears from the
record

that

counsel

did

not

provide

effective

assistance.”

United States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014).
Absent such a showing, ineffective assistance 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.
3

United

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

that

Smith’s

claims

of

ineffective

assistance

do

We
not

conclusively appear on the record.
In

accordance

with

Anders,

we

have

reviewed

the

entire

record in the case for meritorious issues and have found none.
Accordingly, we affirm Smith’s conviction and sentence.

This

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

If Smith 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 Smith.
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

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