UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5135
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LENNARD GRAY,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:08-cr-00228-GBL-1)
Submitted: August 19, 2010 Decided: September 9, 2010
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Brian Donnelly, PRICE, PERKINS, LARKEN & DONNELLY, Virginia
Beach, Virginia, for Appellant. Dana James Boente, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lennard Gray was convicted by a jury and sentenced to
a total of eighty months in prison for one count of conspiracy
to distribute five grams or more of cocaine base, in violation
of 21 U.S.C. § 846 (2006), and three counts of distribution of
five grams or more of cocaine base, in violation of 21 U.S.C.
§§ 2, 841(a)(1) (2006). Counsel has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), indicating that
the court should affirm the district court’s judgment but
explaining that Gray wishes to challenge the district court’s
denial of his Fed. R. Crim. P. 29 motion and the effectiveness
of his trial counsel. Counsel has also moved to withdraw from
further representation of Gray. Gray has not filed a pro se
supplemental brief despite receiving notice that he may do so,
and the Government declined to file a responsive brief. Finding
no error, we affirm.
We review the district court’s denial of Gray’s Rule
29 motion de novo. See United States v. Alerre, 430 F.3d 681,
693 (4th Cir. 2005). When a Rule 29 motion was based on a claim
of insufficient evidence, the jury’s verdict must be sustained
“if there is substantial evidence, taking the view most
favorable to the Government, to support it.” United States v.
Abu Ali, 528 F.3d 210, 244 (4th Cir. 2008) (internal quotation
marks and citations omitted). This court “ha[s] defined
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‘substantial evidence’ as evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
Alerre, 430 F.3d at 693 (internal quotation marks and citation
omitted). We have reviewed the record of the district court
proceedings and conclude that it was reasonable for the jury to
accept the Government’s evidence as adequate and sufficient to
find Gray guilty of the offenses with which he was charged
beyond a reasonable doubt.
We reject on this appeal Gray’s assertion that his
trial counsel was ineffective. An ineffective assistance of
counsel claim should generally be raised in a habeas corpus
motion under 28 U.S.C.A. § 2255 (West Supp. 2010) in the
district court. See United States v. Richardson, 195 F.3d 192,
198 (4th Cir. 1999). Although an ineffective assistance claim
may be cognizable on direct appeal if “it ‘conclusively appears’
from the record that defense counsel did not provide effective
representation,” id. (internal citation omitted), it does not
conclusively appear on the record that counsel provided
ineffective representation. Accordingly, an ineffective
assistance of counsel claim is not cognizable on this appeal.
Although not challenged by Gray, we have also reviewed
his sentence in accordance with our obligations under Anders.
Gray’s presentence investigation report (“PSR”) properly placed
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in criminal history category III and the district court did not
err when it attributed him with a total offense level of twenty-
six, yielding a Guidelines range of seventy-eight to ninety-
seven months. The district court afforded counsel an
opportunity to argue regarding an appropriate sentence, afforded
Gray an opportunity to allocute, considered the 18 U.S.C.
§ 3553(a) (2006) factors before imposing Gray’s sentence, and
thoroughly explained its rationale for imposing Gray’s
particular sentence. See United States v. Carter, 564 F.3d 325,
330 (4th Cir. 2009) (recognizing that the district court must
“place on the record an individualized assessment based on the
particular facts of the case before it” and that the
“individualized assessment . . . must provide a rationale
tailored to the particular case at hand and [be] adequate to
permit meaningful appellate review”) (internal quotation marks
and citations omitted). Because this court presumes Gray’s
within-Guidelines sentence is correct, and since Gray has
presented no evidence to rebut this presumption, we affirm
Gray’s eighty-month sentence. See United States v. Allen, 491
F.3d 178, 193 (4th Cir. 2007).
In accordance with 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. At this
juncture, we also deny counsel’s motion to withdraw from further
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representation of Gray. Rather, this court requires that
counsel inform Gray, in writing, of the right to petition the
Supreme Court of the United States for further review. If Gray
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 Gray. 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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