UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4115
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDRE MONTELL O’BRIEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-03-387)
Submitted: July 15, 2004 Decided: July 20, 2004
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. Rose Mary Parham, Assistant United
States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Andre Montell O’Brien appeals his conviction after a jury
trial of possession of a firearm after having been convicted of a
crime punishable by more than one year of imprisonment, in
violation of 18 U.S.C. § 922(g) (2000), and his 110 month sentence.
Counsel has filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967), raising two potential issues, but stating
that, in his view, there are no meritorious grounds for appeal. We
affirm.
Counsel first suggests that the evidence was insufficient
to support O’Brien’s conviction. A jury’s verdict must be upheld
on appeal if there is substantial evidence in the record to support
it. Glasser v. United States, 315 U.S. 60, 80 (1942). In
determining whether the evidence in the record is substantial, we
view the evidence in the light most favorable to the government,
and inquire whether there is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc). In evaluating the sufficiency of the evidence, we do not
review the credibility of the witnesses and assume that the jury
resolved all contradictions in the testimony in favor of the
government. United States v. Romer, 148 F.3d 359, 364 (4th Cir.
1998). Our review of the record in this case convinces us that the
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evidence was sufficient to support O’Brien’s conviction.
Counsel also questions whether the district court
properly applied the Sentencing Guidelines* in sentencing O’Brien.
Because O’Brien did not object to the presentence investigation
report, we review for plain error. United States v. Vonn, 535 U.S.
55, 74-75 (2002); United States v. Martinez, 277 F.3d 517, 524-25
(4th Cir.), cert. denied, 537 U.S. 899 (2002). We therefore must
determine whether (1) there was error; (2) that was plain; (3) that
affected O’Brien’s substantial rights; and (4) if the first three
criteria are met, whether we should exercise our discretion to
notice the error. United States v. Olano, 507 U.S. 725, 732
(1993). Our review of the record convinces us that the district
court correctly determined the applicable sentencing range under
the Guidelines. To the extent O’Brien asserts error in the
district court’s decision to sentence him to a particular term of
imprisonment within the properly calculated Guidelines range, such
an exercise of discretion by the district court is not reviewable.
United States v. Porter, 909 F.2d 789, 794 (4th Cir. 1990).
In his pro se brief, O’Brien raises three claims that he
received ineffective assistance of counsel. Claims of ineffective
assistance of counsel are generally not cognizable on direct
appeal. See United States v. King, 119 F.3d 290, 295 (4th Cir.
1997). Rather, to allow for adequate development of the record, a
*
U.S. Sentencing Guidelines Manual (2002).
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defendant must bring his claim in a motion under 28 U.S.C. § 2255
(2000). See id.; United States v. Hoyle, 33 F.3d 415, 418 (4th
Cir. 1994). An exception exists when the record conclusively
establishes ineffective assistance. See King, 119 F.3d at 295. We
find that the record in the instant case does not conclusively
establish that O’Brien’s counsel was ineffective. Therefore, we do
not address this issue on direct appeal. O’Brien may assert his
claim in a § 2255 habeas motion, if he so chooses.
As required by Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
O’Brien’s conviction and sentence. This court requires that
counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
client 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 the client. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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