UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4160
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VAN ANTHONY ROSE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (CR-04-194)
Submitted: January 10, 2007 Decided: January 30, 2007
Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Camille M. Davidson, THE FULLER LAW FIRM, Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Keith Cave, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial in the United States District Court for
the Western District of North Carolina, Van Anthony Rose (Rose) was
convicted on one count of being a felon in possession of
ammunition. 18 U.S.C. § 922(g), 924(e). The district court
sentenced him to 360 months’ imprisonment. Rose appeals his
conviction and sentence. We affirm.
On appeal, Rose first contends the district court erred in
denying his motion for judgment of acquittal. In this regard, Rose
specifically attacks the sufficiency of the evidence at trial to
prove beyond a reasonable doubt that he actually or constructively
possessed the ammunition at issue in this case. Where, as here,
the defendant’s motion for acquittal was based on a claim of
insufficient evidence, we must sustain the jury’s verdict if there
was substantial evidence, viewed in the light most favorable to the
government, to support it. United States v. Burgos, 94 F.3d 849,
862 (4th Cir. 1996) (en banc). We do not review the credibility of
the witnesses and assume that the jury resolved any contradictions
in the testimony in favor of the government. Id. at 862-63. After
a careful review of the record, we find the jury’s verdict was
supported by substantial evidence.
Second, Rose claims that he is entitled to a new trial by
reason of ineffective assistance of his trial counsel during
counsel’s cross-examination of government witness Tyisha Robinson.
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Because any ineffectiveness of Rose’s trial counsel during his
cross-examination of Tyisha Robinson does not conclusively appear
from the face of the record, Rose’s ineffective assistance of
counsel claim is not cognizable on direct appeal. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir.) (ineffective assistance of
counsel claim not cognizable on direct appeal unless “lawyer’s
ineffectiveness conclusively appears from the record”), cert.
denied, 126 S. Ct. 1407 (2006).
Finally, Rose seeks vacature of his sentence and a remand for
resentencing on the ground that the criteria the district court
relied upon in sentencing him to a term of imprisonment exceeding
by sixty-seven months the high-end of his otherwise properly
calculated Sentencing Guideline range of 235 to 293 months’
imprisonment was not presented to the jury. Rose’s sentencing
challenge is without merit. We have previously set forth the steps
that a district court should follow in sentencing a defendant post-
United States v. Booker, 543 U.S. 220 (2005). See United States v.
Moreland, 437 F.3d 424, 432-33 (4th Cir.), cert. denied, 126 S. Ct.
2054 (2006); United States v. Green, 436 F.3d 449 (4th Cir.), cert.
denied, 126 S. Ct. 2309 (2006).
First, a district court must “correctly determine, after
making appropriate findings of fact, the applicable guideline
range.” Moreland, 437 F.3d at 432; see also Green, 436 F.3d at
456.
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Next, the court must determine whether a sentence within
that range serves the factors set forth in § 3553(a) and,
if not, select a sentence within statutory limits that
does serve those factors. In doing so, the district
court should first look to whether a departure is
appropriate based on the Guidelines Manual or relevant
case law. . . . If an appropriate basis for departure
exists, the district court may depart. If the resulting
departure range still does not serve the factors set
forth in § 3553(a), the court may then elect to impose a
non-guideline sentence (a “variance sentence”). The
district court must articulate the reasons for the
sentence imposed, particularly explaining any departure
or variance from the guideline range. The explanation of
a variance sentence must be tied to the factors set forth
in § 3553(a) and must be accompanied by findings of fact
as necessary. The district court need not discuss each
factor set forth in § 3553(a) in checklist fashion; it is
enough to calculate the range accurately and explain why
(if the sentence lies outside it) this defendant deserves
more or less.
Moreland, 437 F.3d at 432-33 (internal quotation marks, alteration
marks, and citations omitted). “Our task in reviewing a post-
Booker federal sentence is to determine whether the sentence is
within the statutorily prescribed range and is reasonable.” Id. at
433 (internal quotation marks omitted). In reviewing the
reasonableness of a variance sentence such as we have here, we
“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.” Id. at 433-34.
After carefully reviewing the record in this case, we conclude
the district court fully complied with our post-Booker sentencing
analysis. Moreover, we conclude the district court acted
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reasonably with respect to the imposition of the variance and its
extent.
In conclusion, we affirm Rose’s conviction and sentence. 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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