UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4704
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYREE TEKO SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:06-cr-01206-DCN-1)
Submitted: June 24, 2009 Decided: July 16, 2009
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kirsten E. Small, NEXSEN PRUET, LLC, Greenville, South Carolina,
for Appellant. Sean Kittrell, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tyree Teko Smith was convicted following a jury trial
and sentenced to 481 months’ total imprisonment on two counts of
possessing with intent to distribute five grams or more of
cocaine base, in violation of 21 U.S.C. §§ 841(a), (b)(1)(b)
(2006), two counts of using or carrying a firearm during and in
relation to, or possessing a firearm in furtherance of, a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i)
(2006), and one count of possessing a firearm with an
obliterated serial number, in violation of 18 U.S.C. § 922(k)
(2006). Smith’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), raising several issues, but
concluding that no meritorious issues for appeal exist. Smith
was advised of his right to file a pro se supplemental brief,
and, while he expressly declined to do so, he nonetheless has
claimed ineffective assistance of counsel.
By counsel, Smith first challenges his arrest,
claiming the officers lacked probable cause to arrest him and
seize incriminating evidence from his person incident to his
arrest. Smith’s actions and communications with an individual
present with him at a previously-arranged drug transaction
between the other individual and a confidential informant, which
actions and communications were being observed and
electronically monitored by officers, clearly provided ample
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probable cause for the arrest and seizure of the evidence at
issue. See Michigan v. DeFillippo, 443 U.S. 31, 37 (1979);
Porterfield v. Lott, 156 F.3d 563, 569 (4th Cir. 1998).
Second, we find no merit to Smith's conclusory claim
that the district judge’s consideration of certain DVDs at
sentencing was improper. Hearsay is allowable at sentencing,
see United States v. Love, 134 F.3d 595, 607 (4th Cir. 1998),
and there is no evidence whatsoever that the district judge was
improperly influenced by the DVDs such that the evidence was
unfairly prejudicial to Smith.
Smith next claims his sentence is unreasonable. Our
review of the record reveals that the district court followed
the necessary procedural steps and substantive requirements in
sentencing Smith, and properly calculated the guidelines range
and considered that recommendation in conjunction with the 18
U.S.C. § 3553(a) (2006) factors. Smith’s within guidelines
sentence is entitled to a presumption of reasonableness on
appeal, see United States v. Go, 517 F.3d 216, 218 (4th Cir.
2008); see also Rita v. United States, 551 U.S. 338, ___, 127 S.
Ct. 2456, 2462-69 (2007), and we find no abuse of the district
court’s discretion in its imposition of Smith’s sentence. See
Gall v. United States, 128 S. Ct. 586, 597 (2007).
Smith’s assertion that he should not be subject to the
25-year statutory minimum sentence for a second conviction
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returned in the same proceeding is foreclosed by Deal v. United
States, 508 U.S. 129, 137 (1993), and we decline his request to
overturn our prior decision in United States v. Studifin, 240
F.3d 415, 420-24 (4th Cir. 2001), even if it were applicable to
his case, which it is not.
Finally, Smith’s general claims of ineffective
assistance are not conclusively established on the record.
Thus, such claims are not cognizable on direct appeal. See
United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991).
We have reviewed the record in accordance with Anders
and affirm Smith’s conviction and sentence. We deny Smith’s
motion to remove counsel. 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
in 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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