UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5035
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL WARREN JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00013-MR-11)
Submitted: June 29, 2010 Decided: July 16, 2010
Before WILKINSON and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
D. Baker McIntyre III, Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, Edward R. Ryan, Acting United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Warren Johnson appeals his conviction and 168
month sentence for one count of possession with intent to
distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1),
846, 851 (2006). His attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), certifying that there
are no meritorious issues for appeal, but questioning whether
the district court properly calculated and imposed Johnson’s
sentence and whether Johnson received ineffective assistance of
counsel. Although Johnson was notified of his right to file a
pro se supplemental brief, he has not done so. We affirm.
We review a sentence for reasonableness under an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). This review requires appellate consideration of both
the procedural and substantive reasonableness of a sentence.
Id. In determining whether a sentence is procedurally
reasonable, we first assess whether the district court properly
calculated the defendant’s advisory guideline range. See Gall,
552 U.S. at 49, 51. We then consider whether the district court
failed to consider the 18 U.S.C. § 3553(a) (2006) factors and
any arguments presented by the parties, selected a sentence
based on “clearly erroneous facts,” or failed to sufficiently
explain the selected sentence. See id. at 49-50, 51.
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Finally, we review 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) (quoting Gall, 552 U.S. at 51). When reviewing
the district court’s application of the sentencing guidelines,
we review findings of fact for clear error and questions of law
de novo. United States v. Osborne, 514 F.3d 377, 387
(4th Cir.), cert. denied, 128 S. Ct. 2525 (2008). We afford a
sentence within the properly calculated guideline range a
presumption of reasonableness. United States v. Green, 436 F.3d
449, 457 (4th Cir. 2006); see Rita v. United States, 551 U.S.
338, 341, 347 (2007).
On the Government’s motion, Johnson actually received
a sentence well below his guideline term of 240 months’
imprisonment (the statutory mandatory minimum). Counsel has
identified no error in this sentence, either procedural or
substantive, and we concur.
Finally, the claim that counsel may have rendered
ineffective assistance is more appropriately considered in a
post-conviction proceeding brought pursuant to 28 U.S.C.A.
§ 2255 (West Supp. 2010), unless counsel’s alleged deficiencies
conclusively appear on the record. See United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Because we find
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no conclusive evidence on the record that counsel rendered
ineffective assistance, we decline to consider this claim on
direct appeal.
As required by Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Johnson, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Johnson 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 Johnson.
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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