UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4349
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES EDWARD RHODES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:09-cr-00217-JAB-1)
Submitted: March 14, 2011 Decided: April 12, 2011
Before MOTZ, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kearns Davis, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, LLP,
Greensboro, North Carolina, for Appellant. John W. Stone, Jr.,
Acting United States Attorney, Terry M. Meinecke, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Edward Rhodes pled guilty to unlawful
possession of a firearm by a convicted felon, 18 U.S.C.
§ 922(g)(1) (2006), and was sentenced within the guideline range
to a term of fifty-five months of imprisonment. Rhodes appeals
his sentence, contending that his sentence should be vacated
because (1) the district court failed to recognize its
discretion to depart below the advisory guideline range,
(2) defense counsel rendered ineffective assistance because he
failed to request a departure under U.S. Sentencing Guidelines
Manual § 5K2.11 (2009) (Lesser Harms), and (3) resentencing is
necessary to allow the district court to reconsider the 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2010) sentencing factors
in light of McDonald v. City of Chicago, 130 S. Ct. 3020 (2010).
We affirm.
Three firearms were found in Rhodes’ home when a
search warrant was executed there based on reports of drug
transactions. Rhodes maintained that he possessed the firearms
only for protection after racist graffiti was painted on the
rural road in front of his house. At sentencing, he requested a
sentence at the low end of the guideline range of 51-63 months.
When a sentencing court refuses to depart below the
guideline range, its decision is not appealable unless the court
failed to understand its authority to depart. United States v.
2
Brewer, 520 F.3d 367, 371 (4th Cir. 2008). Here, Rhodes never
requested a departure. Therefore, we review the sentence under
a “deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). Rhodes does not claim that the
district court committed any procedural error. This court
presumes that a sentence imposed within a properly calculated
guidelines range is substantively reasonable. United States v.
Go, 517 F.3d 216, 218 (4th Cir. 2008); see Rita v. United
States, 551 U.S. 338, 346-56 (2007) (upholding appellate
presumption of reasonableness for within-guidelines sentence).
After review of the record, we conclude that Rhodes has failed
to overcome the presumption of reasonableness for his within-
guidelines sentence.
In a footnote to his first claim of error, Rhodes
asserts that his trial attorney was ineffective in failing to
request a downward departure. Claims of ineffective assistance
of counsel are generally not cognizable on direct appeal unless
the record conclusively establishes ineffective assistance.
United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).
In this case, the record does not conclusively show that Rhodes’
counsel was ineffective.
After Rhodes was sentenced, the Supreme Court held, in
McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010), that
the individual Second Amendment right to bear arms recognized in
3
District of Columbia v. Heller, 554 U.S. 570 (2008), is a
fundamental right applicable to the states under the Fourteenth
Amendment. Rhodes argues that the district court should have
the opportunity to reconsider, in a resentencing hearing, the
§ 3353(a) factors affecting his sentence in light of McDonald.
We conclude that McDonald did not change the legal landscape to
the extent that it requires resentencing in Rhodes’ case because
it merely extended to the states the principle announced in
Heller before Rhodes was sentenced.
We therefore affirm the sentence imposed by the
district court. 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