UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4594
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GENAIA TYRHEEN MOORE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:06-cr-00022-2)
Submitted: January 28, 2008 Decided: February 15, 2008
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Roderick G. Davis, THE LAW OFFICE OF RODERICK G. DAVIS, PLLC,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina, Amy Elizabeth
Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Genaia Tyrheen Moore pled guilty without a plea agreement
to: conspiracy to commit bank robbery (Count One), bank robbery
(Count Two), possession of a firearm during a crime of violence
(Count Three), stealing a firearm that moved in interstate commerce
(Count Four), and possession of a stolen firearm (Count Five).
Moore’s advisory guideline range with respect to Counts One, Two,
Four, and Five, was 46-57 months, reflecting an offense level of 23
and a criminal history category of I. Moore also was subject to a
consecutive five-year sentence on Count Three. The district court
concluded that the factors set forth at 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2007) warranted a sentence below the advisory
guideline range. The court imposed concurrent sentences of thirty-
six months on Counts One, Two, Four, and Five, to be followed by
sixty months on Count Three, for an aggregate sentence of ninety-
six months.
Moore now appeals. Her attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), alleging
that the sentence is unreasonable but stating that there are no
meritorious issues for review. Moore has filed a pro se
supplemental brief asserting that counsel was ineffective. Finding
no reversible error, we affirm.
We review a sentence imposed after United States v.
Booker, 543 U.S. 220 (2005), to determine whether it is “within the
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statutorily prescribed range” and reasonable. United
States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). Here,
Moore’s sentence was statutorily authorized. Reasonableness review
requires us to consider whether the chosen sentence constitutes an
abuse of discretion. United States v. Pauley, No. 07-4270, 2007 WL
4555520, at *5 (4th Cir. Dec. 28, 2007). In making this decision,
we first examine the sentence “for significant procedural errors.”
Id. There were no such errors in this case; we note that the
sentencing court: correctly calculated the advisory guideline
range; heard from the parties regarding an appropriate sentence;
considered the factors set forth at 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2007); and articulated compelling reasons* for
imposing a variance sentence. Id.; see Gall v. United States, No.
06-7949, 2007 WL 4292116, at *7 (U.S. Dec. 10, 2007). Our
reasonableness review also requires us to consider the substance of
the sentence taking into account “the totality of the
circumstances.” Pauley, 2007 WL 4555520, at *5. We conclude that
the variance sentence, which falls roughly twenty percent below the
lowest end of the advisory guideline range, was also substantively
reasonable.
*
The district court measured the nature and seriousness of the
crimes against Moore’s “horrific background and history of
psychiatric care and suicide attempts, in combination with a crack
addiction.” These factors, the court found, placed her in a
different position than many defendants who appear before the court
for sentencing.
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Moore’s claim of ineffective assistance of counsel is not
cognizable on direct appeal because ineffectiveness does not
conclusively appear on the face of the record. Moore should raise
the claim, if at all, in a motion filed pursuant to 28 U.S.C.
§ 2255 (2000). See United States v. Richardson, 195 F.3d 192, 198
(4th Cir. 1999); United States v. King, 195 F.3d 192, 198 (4th Cir.
1999).
We have examined the entire record in this case in
accordance with the requirements of Anders, and we find no
meritorious issues for appeal. Accordingly, we affirm. This court
requires counsel inform his client, in writing, of her 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, counsel may move
in this court for leave to withdraw from representation. Counsel’s
motion must state that a copy of the motion 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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