UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4575
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY EUGENE BOYD,
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. (3:07-cr-00045-RJC-1)
Submitted: June 22, 2009 Decided: June 26, 2009
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Boyd appeals from the criminal judgment
imposing a 255-month term of imprisonment after he pled guilty
to possession with intent to distribute marijuana, Ecstasy,
cocaine, and cocaine base, and possession of a firearm during
and in relation to a drug trafficking crime. Counsel has filed
a brief in accordance with Anders v. California, 386 U.S. 738
(1967), stating that after a review of the record, there are no
meritorious issues for appeal. Boyd filed a pro se supplemental
brief, and the Government has declined to file a brief. Boyd’s
Anders brief raised the issue of whether trial counsel was
ineffective in failing to object to the use of a North Carolina
conviction for drug trafficking to establish Boyd’s career
offender status. Finding no error, we affirm.
Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal. United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). Rather, to allow for adequate
development of the record, a defendant must bring his claims in
a 28 U.S.C.A. § 2255 (West Supp. 2008) motion. King, 119 F.3d
at 295. An exception exists where the record conclusively
establishes ineffective assistance. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
Here, the record does not support Boyd’s claim. It
does not conclusively appear from the record that counsel’s
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failure to object was prejudicial. It is unknown whether
counsel investigated the facts of the conviction and the record
does not include the state indictment or judgment for the
offense. Because there is no non-speculative evidence that
counsel committed errors that negatively affected Boyd’s
sentence, we decline to consider Boyd’s allegations of
ineffective assistance at this time.
Boyd filed a pro se supplemental brief raising issues
relating to the merits of conviction, including amendment of the
indictment, illegal search and seizure, ineffective assistance
relating to search and seizure issues, and that his sentence was
not reasonable. Boyd has waived the issues regarding his
conviction by pleading guilty.
This court reviews a sentence for reasonableness under
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 128 S. Ct. 586, 597 (2007). This review requires
appellate consideration of both the procedural and substantive
reasonableness of a sentence. Id. at 597. In determining
whether a sentence is procedurally reasonable, this court must
first assess whether the district court properly calculated the
defendant’s advisory Guidelines range. Id. at 596-97. A
sentence within the properly calculated Guidelines range may be
afforded an appellate presumption of reasonableness. Rita v.
United States, 551 U.S. 338, 127 S. Ct. 2456, 2459 (2007). This
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court must then consider whether the district court failed to
consider the § 3553(a) factors, analyzed any arguments presented
by the parties, or sufficiently explained the selected sentence.
Gall, 128 S. Ct. at 597. Finally, this court reviews the
substantive reasonableness of the sentence, “taking into account
the totality of the circumstances, including the extent of any
variance from the Guidelines range.” United States v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007). This court’s recent decision
in United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009),
requires an “individualized assessment” of the particular facts
of every sentencing case, whether the district court imposes an
above, below, or within-Guidelines sentence.
Boyd’s 255-month sentence was seven months below the
low end of the Guidelines range. The court carefully considered
counsel’s argument and specifically articulated its reasons for
crafting the sentence, with particular emphasis on Boyd’s
lengthy criminal history and escalation of criminal activity.
We therefore conclude that Boyd’s sentence was not an abuse of
discretion and is reasonable.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Boyd’s conviction and sentence. This court
requires that counsel inform Boyd, in writing, of the right to
petition the Supreme Court of the United States for further
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review. If Boyd 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 Boyd. 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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