UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4679
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH KENNY MARTIN, a/k/a Twice,
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-00270-WO-1)
Submitted: November 22, 2010 Decided: January 3, 2011
Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher A. Beechler, LAW OFFICES OF CHRISTOPHER A. BEECHLER,
Winston-Salem, North Carolina, for Appellant. Randall Stuart
Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Kenny Martin appeals the 240-month sentence
imposed following his guilty plea to one count of distribution
of cocaine base (“crack”), in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A) (2006). Counsel for Martin filed a brief
in this court in accordance with Anders v. California, 386 U.S.
738 (1967), certifying that there are no non-frivolous issues
for appeal, but noting that Martin objects to the length of his
sentence. Martin filed a pro se supplemental brief contending
that the district court imposed an unreasonable sentence and
that he received ineffective assistance of counsel. Finding no
reversible error, we affirm.
Because Martin did not request a different sentence
than the one ultimately imposed, we review his sentence for
plain error. See United States v. Lynn, 592 F.3d 572, 578-79
(4th Cir. 2010) (unpreserved sentencing errors reviewed only for
plain error). We begin by reviewing the sentence for
significant procedural error, including such errors as “failing
to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553(a) [2006] factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the
chosen sentence including an explanation for any deviation from
the Guidelines.” Gall v. United States, 552 U.S. 38, 51 (2007).
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If there are no procedural errors, we then consider the
substantive reasonableness of the sentence, taking into account
the totality of the circumstances. United States v. Pauley, 511
F.3d 468, 473 (4th Cir. 2007).
“When rendering a sentence, the district court ‘must
make an individualized assessment based on the facts
presented.’” United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009) (quoting Gall, 552 U.S. at 50). Accordingly, a
sentencing court must apply the relevant § 3553(a) factors to
the particular facts presented and must “state in open court”
the particular reasons that support its chosen sentence. Id.
The court’s explanation need not be exhaustive; it must be
“sufficient ‘to satisfy the appellate court that [the district
court] has considered the parties’ arguments and has a reasoned
basis for exercising [its] own legal decisionmaking authority.’”
United States v. Boulware, 604 F.3d 832, 837 (4th Cir. 2010)
(quoting Rita v. United States, 551 U.S. 338, 356 (2007)).
We hold that the district court committed neither
procedural nor substantive error during sentencing. The
district court used the correct advisory Guidelines range and
explained its reasoning, considering both parties’ arguments and
the § 3553(a) factors. Moreover, Martin’s sentence is below the
applicable Guidelines range, at the statutory minimum. In the
absence of a substantial assistance motion by the Government,
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the district court lacked the authority to depart below the
statutory minimum. See United States v. Robinson, 404 F.3d 850,
862 (4th Cir. 2005).
In his pro se supplemental brief, Martin contends that
(1) the sentence imposed by the district court contradicted its
finding that Martin was eligible for a 180-month sentence;
(2) the district court erred by failing to consider his “mental
deficiencies,” as explained in the Presentence Investigation
Report (“PSR”); (3) the district court erred by ordering that
the sentence run consecutively, rather than concurrently, to his
undischarged state sentence; and (4) counsel rendered
ineffective assistance. Martin’s first two claims fail as they
are completely contradicted by the record. The district court
never found that Martin was eligible for a 180-month sentence
and the PSR did not contain any evidence of mental deficiencies.
Martin’s third claim also is without merit, as it was within the
court’s discretion to decide whether to run the sentences
consecutively or concurrently, pursuant to U.S. Sentencing
Guidelines Manual § 5G1.3(c) (2009). Therefore, we hold that
Martin’s sentence was reasonable and the district court
committed neither procedural nor substantive error.
Additionally, we hold that Martin’s ineffective assistance of
counsel claims are not cognizable on direct appeal because
ineffective assistance of counsel does not appear conclusively
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on the record. See United States v. Baldovinos, 434 F.3d 233,
239 (4th Cir. 2006).
In accordance with Anders, we have examined the entire
record and find no other meritorious issues for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Martin, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Martin 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 Martin.
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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