US v. Robert Smith


UNPUBLISHED PER CURIAM OPINION filed.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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Appeal: 16-4283 Doc: 34 Filed: 12/22/2016 Pg: 1 of 4 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4283 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ROBERT LEE SMITH, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 16-4283 Doc: 34 Filed: 12/22/2016 Pg: 2 of 4 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 Appeal: 16-4283 Doc: 34 Filed: 12/22/2016 Pg: 3 of 4 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 Appeal: 16-4283 Doc: 34 Filed: 12/22/2016 Pg: 4 of 4 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 4

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