UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4133
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HARRY A. SPAIN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (CR-03-10025)
Submitted: May 19, 2006 Decided: June 7, 2006
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marc Seguinot, THE HELEIN LAW GROUP, P.C., McLean, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Anthony P.
Giorno, Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Harry A. Spain appeals his conviction of three counts of
possessing contraband in prison, in violation of 18 U.S.C.
§ 1791(a)(b) (2000), and the resulting sixty-month sentence on each
count, to run concurrent with each other and consecutive to any
previous sentence. Spain’s attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
certifying that there are no meritorious issues for appeal, but
raising two claims: (1) the district court erred at sentencing in
considering several prior arrests that did not result in
convictions; and (2) defense counsel rendered ineffective
assistance at trial. Spain, informed of his right to file a pro se
supplemental brief, has not done so. We affirm.
After Booker, courts must calculate the appropriate
guideline range, consider the range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2005), and impose a sentence. The sentence must
be “within the statutorily prescribed range and . . . reasonable.”
United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005)
(citations omitted). If the district court concludes that a
sentence within the sentencing range does not adequately reflect
the § 3553(a) factors, it may impose a sentence outside the
sentencing range, upon explaining why a sentence outside the range
better serves statutory goals. United States v. Eura, 440 F.3d
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625, 632 (4th Cir. 2006). “[I]n reviewing a variance sentence,
this court must consider--in light of the factors enumerated in
§ 3553(a) and any relevant guideline provisions--whether the
district court acted reasonably with respect to (1) the imposition
of a variance sentence, and (2) the extent of the variance.”
United States v. Moreland, 437 F.3d 424, 433-34 (4th Cir.), cert.
denied, __ U.S.L.W. __, 2006 WL 1022030 (U.S. May 15, 2006) (No.
05-10393). “Generally, if the reasons justifying [a] variance are
tied to § 3553(a) and are plausible, the sentence will be deemed
reasonable.” Id. at 434.
Here, the district court properly calculated the
guideline range. The court then concluded that a sentence within
that range would not sufficiently reflect the § 3553(a) factors.
In imposing the variance, the court reviewed “the nature and
circumstances of the offense.” 18 U.S.C. § 3553(a)(1). The court
also observed that the variance was intended to “reflect the
seriousness of the offense” and “promote respect for the law,”
§ 3553(a)(2)(A), to deter other inmates from similar behavior,
§ 3553(a)(2)(B), and to protect staff and inmates from illegal
weapons within the prison, § 3553(a)(2)(C). We conclude that the
district court acted reasonably in imposing this variance sentence.
As to the specific issues raised by Spain, first, there
is no suggestion in the record that the district court relied on
the charges, noted in the presentence report, that did not result
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in convictions. Therefore, we conclude that this claim lacks
merit. Spain also alleges that trial counsel rendered
constitutionally ineffective assistance. “Ineffective assistance
claims are not cognizable on direct appeal unless counsel’s
ineffectiveness conclusively appears on the record.” United States
v. James, 337 F.3d 387, 391 (4th Cir. 2003). Instead, to allow for
adequate development of the record, a defendant generally must
bring his ineffective assistance claims in a motion under 28 U.S.C.
§ 2255 (2000). United States v. King, 119 F.3d 290, 295 (4th Cir.
1997). Because the record does not conclusively show that counsel
was ineffective, we will not review this claim.
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm. 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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