UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4805
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC ODELL GADSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan, Chief
District Judge. (4:05-cr-00055-FL)
Submitted: February 14, 2008 Decided: March 10, 2008
Before WILKINSON and NIEMEYER, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown,
North Carolina, for Appellant. Anne M. Hayes, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Eric Odell Gadson
pled guilty to armed bank robbery, in violation of 18 U.S.C. § 2113
(a) and (d) (2000), and using, carrying, or possessing a firearm
during and in relation to a crime of violence, in violation of 18
U.S.C. § 924(c)(1)(A) (2000). The district court sentenced Gadson
to 188 months’ imprisonment for the armed bank robbery conviction
and to the statutory minimum of 300 months’ imprisonment, to run
consecutive to any other term of imprisonment, for the firearm
conviction. Gadson noted a timely appeal.
On appeal, counsel filed an Anders1 brief, in which he
states there are no meritorious issues for appeal. Nevertheless,
he raises the following issues: (1) whether the district court
erred in finding Gadson was competent to face the charges against
him; (2) whether the district court erred in accepting Gadson’s
guilty plea; (3) whether Gadson’s sentence is reasonable; and (4)
whether Gadson received ineffective assistance of counsel. Gadson
was advised of his right to file a pro se supplemental brief, but
has not done so. The Government declined to file a brief. We
affirm.
Counsel first questions the district court’s
determination that Gadson was competent to face the charges against
him. After receiving Gadson’s mental health evaluation and the
1
Anders v. California, 386 U.S. 738 (1967).
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psychologist’s recommendation that Gadson was competent, the
district court further questioned Gadson. Based on this
information, it determined Gadson was competent to face the charges
against him. We find no clear error in this ruling. See United
States v. Robinson, 404 F.3d 850, 856 (4th Cir. 2005) (stating
standard of review and providing standard for competency
determination).
Counsel further questions the validity of Gadson’s guilty
plea. Because Gadson did not move in the district court to
withdraw his plea, this court reviews the challenge to the adequacy
of the Rule 11 hearing for plain error. See United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Prior to accepting a
guilty plea, the trial court must ensure the defendant understands
the nature of the charges against him, the mandatory minimum and
maximum sentences, and other various rights, so it is clear that
the defendant is knowingly and voluntarily entering his plea. The
court must also determine whether there is a factual basis for the
plea. Fed. R. Crim. P. 11(b)(1), (3); United States v. DeFusco,
949 F.2d 114, 116, 120 (4th Cir. 1991). Counsel does not specify
any deficiencies in the district court’s Rule 11 inquiry, and our
review of the plea hearing transcript reveals that the district
court conducted a thorough Rule 11 colloquy that assured Gadson’s
plea was made both knowingly and voluntarily.
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Counsel also raises the issue of the reasonableness of
Gadson’s sentence. We will affirm a sentence imposed by the
district court as long as it is within the statutorily prescribed
range and is reasonable. United States v. Hughes, 401 F.3d 540
(4th Cir. 2005). Reasonableness review focuses on whether the
district court abused its discretion. United States v. Pauley,
F.3d , 2007 WL 4555523 at *5 (4th Cir. Dec. 28, 2007). A
sentence may be unreasonable for procedural or substantive reasons.
Id. An error of law or fact can render a sentence unreasonable.
United States v. Green, 436 F.3d 449, 456 (4th Cir.), cert. denied,
126 S. Ct. 2309 (2006). We review a district court’s factual
findings for clear error and its legal conclusions de novo. United
States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006). Assuming the
sentence contains no significant procedural errors, we may presume
a sentence falling within the Guidelines range to be reasonable.
Pauley, 2007 WL 4555523 at *4.
When sentencing a defendant, the district court must:
(1) properly calculate the Guideline range; (2) determine whether
a sentence within that range serves the § 3553(a) factors in light
of the arguments presented by the parties; (3) implement mandatory
statutory limitations; and (4) explain its reasons for selecting a
sentence. See Gall v. United States, 128 S. Ct. 586, 596-97
(2007). The sentencing court may not presume that the applicable
Guidelines range is reasonable, but should explain any deviation
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from that range, providing correspondingly stronger justification
in relation to the degree of variance from the Guidelines range.
Id.
While a district court must consider the § 3553(a)
factors and explain its sentence, it need not explicitly reference
§ 3553 or discuss every factor on the record, particularly when the
court imposes a sentence within the Guidelines range. United
States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). One reason
that a sentence within an advisory range may be presumed to be
reasonable is that the most salient § 3553(a) factors are already
incorporated into the Guideline determinations. Id. at 342-43; see
also Rita v. United States, 127 S. Ct. 2456, 2467 (2007) (“where
judge and Commission both determine that” a Guideline sentence is
appropriate, “that sentence likely reflects the § 3553(a)
factors”). A district court’s consideration of pertinent factors
may also be implicit in its ultimate ruling. See United States v.
Johnson, 138 F.3d 115, 119 (4th Cir. 1998); United States v. Davis,
53 F.3d 638, 642 (4th Cir. 1995).
The district court’s explanation should provide some
indication that it considered the § 3553(a) factors as to the
defendant and the potentially meritorious arguments raised by the
parties at sentencing. United States v. Montes-Pineda, 445 F.3d
375, 380 (4th Cir. 2006). “[W]hen a judge decides simply to apply
the Guidelines to a particular case, doing so will not necessarily
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require lengthy explanation.” Rita, 127 S. Ct. at 2468.
“Circumstances may well make clear that the judge rests his
decision upon the Commission’s own reasoning that the Guidelines
sentence is a proper sentence (in terms of § 3553(a) and other
congressional mandates) in the typical case, and that the judge has
found that the case before him is typical.” Id.
Our review of the record reveals no procedural errors in
the district court’s calculation of the Guidelines range and its
consideration of the § 3553(a) factors. Gadson’s 188-month
sentence for the armed robbery conviction is at the bottom of the
applicable Guidelines range and below the statutory maximum.
Gadson’s sentence of 300 months’ imprisonment for his § 924(c)
conviction is the mandatory minimum statutory sentence because
Gadson had previously been convicted under that statute. See 18
U.S.C. § 924(c)(1)(C)(I). Therefore, under the standard
articulated above, we find that his sentence was reasonable.
Lastly, counsel questions whether Gadson received
effective assistance of counsel during the proceedings in district
court. Claims of ineffective assistance are not cognizable on
direct appeal unless the record conclusively establishes it.
United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). To
allow for adequate development of the record, claims of ineffective
assistance of counsel should be brought in a 28 U.S.C. § 2255
(2000) motion. United States v. King, 119 F.3d 290, 295 (4th Cir.
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1997). Because the record does not conclusively establish that
Gadson received ineffective assistance of counsel, we decline to
consider this claim on direct appeal.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm the district court’s judgment.
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 the
decisional process.
AFFIRMED
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