UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5042
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HENRY THOMAS CLARK,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00297-WO-1)
Submitted: October 20, 2010 Decided: November 4, 2010
Before KING, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender,
Greensboro, North Carolina, for Appellant. Terry Michael
Meinecke, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Henry Thomas Clark pled
guilty to possession with intent to distribute 11.6 grams of
cocaine base (“crack”), in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B) (2006). The district court sentenced Clark to 252
months’ imprisonment, a ten-month downward variance from the
guidelines range. Clark timely appealed.
Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), finding no meritorious grounds
for appeal but questioning the reasonableness of Clark’s
sentence. Clark filed a pro se supplemental brief challenging
his conviction on double jeopardy grounds and asserting claims
of ineffective assistance of appellate counsel.
Turning first to Clark’s double jeopardy challenge, he
contends that because he was convicted in state court for the
same conduct that gave rise to the federal charges, his federal
conviction is unconstitutional. We conclude that the dual
sovereignty exception to the double jeopardy bar applies in this
case and that Clark’s federal conviction is constitutionally
sound. See Heath v. Alabama, 474 U.S. 82, 89 (1985) (“[T]he
Court has uniformly held that States are separate sovereigns
with respect to the Federal Government because each State’s
power to prosecute is derived from its own ‘inherent
sovereignty,’ and not from the Federal Government.”) (citation
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omitted); Rinaldi v. United States, 434 U.S. 22, 28 (1977)
(“[T]he Constitution does not deny the State and Federal
Governments the power to prosecute for the same act.”).
Appellate counsel questions Clark’s sentence, but
ultimately concludes that it is reasonable. An appellate court
reviews a sentence for reasonableness under an abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.
First, the court must assess whether the district court properly
calculated the guidelines range, considered the 18 U.S.C.
§ 3553(a) (2006) factors, analyzed any arguments presented by
the parties, and sufficiently explained the selected sentence.
Id. at 49-50; see United States v. Lynn, 592 F.3d 572, 576 (4th
Cir. 2010) (“[A]n individualized explanation must accompany
every sentence.”); United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009). An extensive explanation is not required as
long as the appellate court is satisfied “‘that [the district
court] has considered the parties’ arguments and has a reasoned
basis for exercising [its] own legal decisionmaking authority.’”
United States v. Engle, 592 F.3d 495, 500 (4th Cir.) (quoting
Rita v. United States, 551 U.S. 338, 356 (2007)), cert. denied,
79 U.S.L.W. 3018 (U.S. Oct. 4, 2010) (No. 09-1512). Even if the
sentence is procedurally reasonable, the court must consider the
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substantive reasonableness of the sentence, “examin[ing] the
totality of the circumstances to see whether the sentencing
court abused its discretion in concluding that the sentence it
chose satisfied the standards set forth in § 3553(a).” United
States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).
The district court properly calculated Clark’s
guidelines range, provided an individualized analysis of the
§ 3553(a) factors as they apply to Clark’s circumstances, and
analyzed the arguments presented by the parties. Furthermore,
the court granted a ten-month downward variance from the
advisory guidelines range to credit Clark with the time served
on his initial sentence in state court for the same conduct. We
conclude that Clark’s sentence is reasonable.
Finally, in his pro se supplemental brief, Clark
claims he received ineffective assistance of appellate counsel.
Claims of ineffective assistance of counsel are generally not
cognizable on direct appeal. United States v. King, 119 F.3d
290, 295 (4th Cir. 1997). Rather, to allow for adequate
development of the record, a defendant must bring such claims in
a 28 U.S.C.A. § 2255 (West Supp. 2010) motion, unless the record
conclusively establishes ineffective assistance. United States
v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); King, 119 F.3d
at 295. Because the record does not conclusively show that
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Clark’s counsel was ineffective, we decline to consider Clark’s
claims on direct appeal.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Clark’s conviction and sentence. We deny
Clark’s pro se motion for copies of documents. This court
requires that counsel inform Clark, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Clark 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 Clark. 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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