UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4366
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID B. EVANS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (2:06-cr-00211)
Submitted: September 11, 2007 Decided: September 13, 2007
Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. Jeffrey Vollmer, GOODWIN & GOODWIN, LLP, Charleston, West
Virginia, for Appellant. Monica Lynn Dillon, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David B. Evans pled guilty pursuant to a written plea
agreement to one count of distribution of cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (2000). Evans was sentenced by
the district court to eighteen months’ imprisonment. Finding no
error, we affirm.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there were no
meritorious grounds for appeal, but contending that counsel
provided ineffective assistance and that Evans’ sentence is
unreasonable. Evans was notified of his right to file a pro se
supplemental brief, but did not do so, and the Government elected
not to file a responsive brief.
Evans contends his counsel was ineffective for failing to
note an appeal. He further contends that counsel improperly
advised Evans that he would receive probation. An ineffective
assistance of counsel claim is generally not cognizable on direct
appeal, but should instead be asserted in a post-conviction motion
under 28 U.S.C. § 2255 (2000). See United States v. Richardson,
195 F.3d 192, 198 (4th Cir. 1999). However, we have recognized an
exception to the general rule when “it ‘conclusively appears’ from
the record that defense counsel did not provide effective
representation.” Id. (quoting United States v. Gastiaburo, 16 F.3d
582, 590 (4th Cir. 1994)). Because the record does not
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conclusively establish that counsel was ineffective, we conclude
Evans’ claims are not cognizable on appeal.
Evans additionally contends that his sentence is
unreasonable because the court relied on the 100:1 crack to powder
cocaine ratio and failed to adequately consider his medical
conditions. However, the district court appropriately calculated
the advisory guideline range and considered it in conjunction with
other relevant factors under the Guidelines and 18 U.S.C. § 3553(a)
(2000). See United States v. Moreland, 437 F.3d 424, 432-33 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006). The court
additionally considered the Presentence Investigation Report, which
extensively detailed Evans’ mental and physical health issues.
Though Evans argues that the district court should have disregarded
the 100:1 ratio in determining an appropriate sentence, this
argument is foreclosed by United States v. Eura, 440 F.3d 625, 630-
34 (4th Cir. 2006), petition for cert. filed, ___ U.S.L.W. ___
(U.S. June 20, 2006) (No. 05-11659). Thus, Evans’ eighteen-month
sentence, which is at the bottom of the applicable Guidelines range
and well below the statutory maximum, is reasonable. See United
States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S.
Ct. 2309 (2006); see also Rita v. United States, 127 S. Ct. 2456,
2462-65 (2007).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
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appeal. Accordingly, we affirm the judgment of the district court.
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 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 in the
decisional process.
AFFIRMED
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