United States v. Thomas

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-5042

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

COREY RONSHION THOMAS,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (CR-04-219)

Submitted: May 16, 2006 Decided: May 18, 2006

Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Leslie Carter Rawls, Charlotte, North Carolina, for Appellant.
Robert John Gleason, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Corey Ronshion Thomas pled guilty, pursuant to a plea

agreement, to one count 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). The

district court sentenced Thomas to thirty-seven months of

imprisonment, the bottom of the applicable advisory Guideline

range. On appeal, counsel filed an Anders1 brief, in which she

states that there are no meritorious issues for appeal, but

requests that this court consider whether Thomas effectively waived

his right to appeal, whether Thomas’ counsel was ineffective,

whether the Government engaged in prosecutorial misconduct, and

whether the sentence was inconsistent with paragraph five of the

plea agreement. Thomas was advised of his right to file a pro se

supplemental brief, but has not filed a brief. We affirm.

Although the plea agreement included a waiver of Thomas’

right to appeal his conviction or sentence, the Government has not

filed a brief in this case or moved to dismiss the appeal based

upon the waiver. Because the Government has not sought to enforce

the waiver, we need not consider whether Thomas’ agreement to the

waiver was knowing and voluntary.

Claims of ineffective assistance of counsel are generally

not cognizable on direct appeal. See United States v. King, 119

1
Anders v. California, 386 U.S. 738 (1967).

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F.3d 290, 295 (4th Cir. 1997). Rather, to allow for adequate

development of the record, a 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. United

States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Our

review of the record leads us to conclude that any deficiencies in

counsel’s performance are not conclusively demonstrated.

A claim of prosecutorial misconduct is reviewed to

determine whether the conduct complained of so infected the trial

with unfairness as to make the resulting conviction a denial of due

process. United States v. Scheetz, 293 F.3d 175, 185 (4th Cir.

2002). To prevail under this standard, Thomas must show that “the

prosecutor’s remarks or conduct were improper and, . . . that such

remarks or conduct prejudicially affected his substantial rights”

so as to deprive him of a fair trial. Id. Thomas does not

identify any specific remarks or conduct by the Assistant United

States Attorney that were allegedly improper, and our review of the

record discloses no impropriety.

In paragraph five of the plea agreement, Thomas

stipulated to certain factors relevant to the determination of the

sentencing range under the Sentencing Guidelines.2 Our review of

the record reveals no inconsistency between these stipulations and

2
U.S. Sentencing Guidelines Manual (2004).

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the offense level calculations in the presentence report, and we

conclude that Thomas’ Guideline range was correctly determined to

be thirty-seven to forty-six months of imprisonment. Moreover, the

district court’s selection of the particular sentence imposed in

this case is reasonable. United States v. Johnson, __ F.3d __,

2006 WL 893594, at *2 (4th Cir. Apr. 7, 2006) (“a sentence within

the proper advisory Guidelines range is presumptively

reasonable.”).

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We therefore affirm Thomas’ conviction and sentence. This

court requires that counsel inform Thomas, in writing, of the right

to petition the Supreme Court of the United States for further

review. If Thomas 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

Thomas.

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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