US v. Robert Lathan

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:15-cr-00228-DKC-8 Copies to all parties and the district court. [999989351]. [16-4331]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4331

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT ANTHONY FITZGERALD LATHAN,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Deborah K. Chasanow, Senior District
Judge. (8:15-cr-00228-DKC-8)

Submitted:

December 15, 2016

Decided:

December 19, 2016

Before SHEDD, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

A.D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt, Maryland,
for Appellant. Collin Francis Delaney, Special Assistant United
States Attorney, Thomas Patrick Windom, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Robert Anthony Fitzgerald Lathan appeals his sentence of 42
months of imprisonment for conspiracy to commit bank fraud, in
violation of 18 U.S.C. § 1349 (2012).

Appellate counsel has filed

a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
concluding that there are no meritorious issues for appeal, but
questioning whether the sentence imposed by the district court was
reasonable and whether the Government breached the plea agreement
by failing to recommend a reasonable sentence.

Lathan has filed

a pro se supplemental brief contending that his sentence was
unreasonable, counsel provided ineffective assistance, and he was
responsible for losses of no more than $100,000.
We

review

deferential

Lathan’s

sentence

abuse-of-discretion

for

reasonableness

standard.”

United

“under
States

a
v.

McCoy, 804 F.3d 349, 351 (4th Cir. 2015) (quoting Gall v. United
States, 552 U.S. 38, 41 (2007)).
consideration

of

both

This review entails appellate

the

reasonableness of the sentence.

procedural

and

substantive

Gall, 552 U.S. at 51.

We presume

that a sentence imposed within the properly calculated Sentencing
Guidelines range is reasonable.

United States v. Mendoza-Mendoza,

597 F.3d 212, 217 (4th Cir. 2010).
We have reviewed the record and conclude that the district
court

properly

calculated

the

Guidelines

range,

treated

the

Guidelines as advisory rather than mandatory, gave the parties an
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opportunity to argue for an appropriate sentence, considered the
18 U.S.C. § 3353(a) factors, selected a sentence not based on
clearly erroneous facts, and sufficiently explained the chosen
sentence.
the

Furthermore, Lathan’s sentence of 42 months was within

Guidelines

range.

sentence is reasonable.

Therefore,

we

conclude

that

Lathan’s

Similarly, we conclude the Government did

not breach the plea agreement, as it recommended a sentence of 46
months,

within

the

Guidelines

range

of

37

to

46

months

of

imprisonment.
Next, a prisoner “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) (alteration and ellipsis omitted).
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.

United

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

Because

the record here does not conclusively establish the alleged grounds
for Lathan’s claim, Lathan does not meet this demanding standard.
This claim should be raised, if at all, in a § 2255 motion.
Finally, Lathan’s guilty plea forecloses his claim that he
was responsible for less than $100,000 in losses.

See United

States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993) (“[A] guilty
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plea

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constitutes

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a

waiver

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of

all

nonjurisdictional

defects,

including the right to contest the factual merits of the charges.”
(internal quotation marks omitted)).
In accordance with Anders, we have reviewed the entire record
in this case and have found no meritorious issues for appeal.
therefore

affirm

the

district

court’s

judgment.

This

We

court

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