UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5197
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDWARD BLAINE MINTZ, a/k/a Edward Blain Mintz,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:08-cr-00040-LHT-1)
Submitted: April 12, 2010 Decided: April 29, 2010
Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dennis Gibson, LAW OFFICE OF DENNIS GIBSON, Asheville, 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Unpublished opinions are not binding precedent in this circuit.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:
Pursuant to a written plea agreement, Edward Blaine
Mintz pled guilty to conspiracy to possess with intent to
distribute more than fifty grams of cocaine base (Count 1), in
violation of 21 U.S.C. § 846 (2006), and possession of a firearm
during and in relation to a drug trafficking crime (Count 3), in
violation of 18 U.S.C. § 924(c) (2006). The district court
granted the Government’s motion for downward departure based
upon substantial assistance, see U.S. Sentencing Guidelines
Manual § 5K1.1, p.s. (2007), and sentenced Mintz to forty-one
months of imprisonment on Count 1, the bottom of the advisory
guidelines range. 1 On appeal, Mintz’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that, in his view, there are no meritorious issues for appeal
but questioning whether counsel in the district court provided
ineffective assistance. Mintz was informed of his right to file
a pro se supplemental brief but has not done so. Finding no
reversible error, we affirm. 2
1
Mintz also received a sixty-month consecutive sentence on
Count 3, which he does not challenge in this appeal.
2
We note that, on appeal, the Government has not relied on
the waiver-of-appellate-rights provision in the plea agreement.
Thus, we will conduct our review pursuant to Anders. United
States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007); see
United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
2
Appellate counsel suggests that trial counsel provided
ineffective assistance by failing to be present at Mintz’s
interviews with law enforcement and by misinforming Mintz of the
possible sentence he faced. This court “may address [claims of
ineffective assistance] on direct appeal only if the lawyer’s
ineffectiveness conclusively appears from the record.” United
States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
Because Mintz’s claims do not meet this high standard, we
decline to review them on direct appeal.
Finally, we held Mintz’s case in abeyance for our
decision in United States v. Lynn, 592 F.3d 572 (4th Cir. 2010),
regarding the adequacy of the district court’s explanation of
the chosen sentence. 3 We have reviewed this issue for plain
error. Lynn, 592 F.3d at 579-80. “To establish plain error,
[Mintz] must show that an error (1) was made, (2) is plain
(i.e., clear or obvious), and (3) affects substantial rights.”
Id. at 577. If Mintz establishes these requirements, this court
“may exercise its discretion to correct the error only if it
seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. (internal quotation marks and
citation omitted). Even assuming that the district court in
3
We note that, when sentencing Mintz, the district court
did not have the benefit of our most recent sentencing
decisions.
3
this case committed error that was plain, Mintz has not
demonstrated on appeal that the error “had a prejudicial effect
on the sentence imposed.” Id. at 580.
In accordance with Anders, we have reviewed the record
for any meritorious issues and have found none. We therefore
affirm the district court’s judgment. We deny counsel’s motion
to withdraw at this time. This court requires that counsel
inform his client, in writing, of the 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
4