United States v. Thompson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4160

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

ROBERT ANTHONY THOMPSON, a/k/a Amp, a/k/a Rat,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:03-cr-00181-FDW-DCK-1; 3:07-CV-209-W-2)

Submitted: July 30, 2009 Decided: August 3, 2009

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North
Carolina, for Appellant. William A. Brafford, Assistant United
States Attorney, Charlotte, North Carolina; Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina;
Gretchen C.F. Shappert, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Robert Anthony Thompson was convicted, pursuant to a

straight-up guilty plea, of conspiracy to possess with intent to

distribute at least five kilograms of powder cocaine and at

least 50 grams of cocaine base, in violation of 21 U.S.C. § 846

(2006) (Count One), and possession with intent to distribute 500

grams or more of cocaine powder and five grams or more of

cocaine base, in violation of 21 U.S.C. § 841 (2006) (Count

Eight). The district court sentenced Thompson to the statutory

mandatory minimum sentence of 240 months’ imprisonment on each

count, to run concurrently, as well as ten years of supervised

release on each count, to run concurrently. Thompson’s counsel

has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), challenging the reasonableness of Thompson’s sentence

and claiming ineffective assistance of counsel, but concluding

that there are no meritorious issues for appeal. Thompson has

filed a supplemental pro se brief, in which he asserts error in

the district court’s refusal to depart below the statutory

mandatory minimum sentence and in its failure to vacate civil

forfeitures he claims were erroneously entered by a civil court.

Finding no reversible error, we affirm.

Thompson’s first claim of error on appeal, both by

counsel and pro se, is a challenge to his sentence. When

determining a sentence, the district court must calculate the

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appropriate advisory guidelines range and consider it in

conjunction with the factors set forth in 18 U.S.C. § 3553(a)

(2006). Gall v. United States, 128 S. Ct. 586, 596 (2007).

Appellate review of a district court’s imposition of a sentence,

“whether inside, just outside, or significantly outside the

[g]uidelines range,” is for abuse of discretion. Id. at 591.

Sentences within the applicable guidelines range may be presumed

by the appellate court to be reasonable. United States v.

Pauley, 511 F.3d 468, 473 (4th Cir. 2007). Further, a

statutorily required sentence is per se reasonable. United

States v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008).

The district court followed the necessary procedural

steps in sentencing Thompson, appropriately treating the

sentencing guidelines as advisory, and properly calculating and

considering the applicable guidelines range and the relevant

§ 3553(a) factors. Thompson’s guidelines range was 240 months

to life. His 240-month sentence, which is the low end of the

applicable guidelines range and represents the applicable

statutory mandatory minimum sentence, was reasonable. Pauley,

511 F.3d at 473; Farrior, 535 F.3d at 224.

In addition, ineffective assistance of counsel claims

are not generally cognizable on direct appeal unless ineffective

assistance “conclusively appears” on the record. See United

States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). As no

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such ineffective assistance is evident in this case, this claim

is not cognizable on direct appeal, but instead must be raised,

if at all, in a post-conviction proceeding pursuant to 28

U.S.C.A. § 2255 (West 2000 & Supp. 2009). See United States v.

James, 337 F.3d 387, 391 (4th Cir. 2003).

We have reviewed Thompson’s pro se supplemental brief

and find no merit to his claims. In accordance with Anders, we

have reviewed the record in this case and have found no

meritorious issues for appeal. We therefore affirm Thompson’s

conviction and sentence. This court requires that counsel

inform Thompson, in writing, of the right to petition the

Supreme Court of the United States for further review. If

Thompson 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

Thompson.

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