UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4567
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL WAYNE MILAM, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:09-cr-00161-NCT-2)
Submitted: June 15, 2011 Decided: June 24, 2011
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher R. Pudelski, LAW OFFICES OF CHRISTOPHER PUDELSKI,
Washington, D.C., for Appellant. Ripley Rand, United States
Attorney, Michael F. Joseph, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Wayne Milam, Jr. pled guilty, pursuant to a
plea agreement, to possession of a firearm by a convicted felon,
in violation of 18 U.S.C. § 922(g) (2006). Milam was sentenced
to 110 months’ imprisonment. On appeal, counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that, in his opinion, there are no meritorious issues for
appeal. Counsel questioned whether Milam received effective
assistance of counsel, but concludes that counsel’s
ineffectiveness is not conclusively established by the record
before the court, and such a claim is better suited for a 28
U.S.C.A. § 2255 (West Supp. 2010) proceeding. ∗ Upon review of
the record, we directed supplemental briefing from the parties
on whether the district court committed error by applying the
U.S. Sentencing Guidelines Manual § 2K2.1(b)(6) (2009)
enhancement in light of United States v. Blount, 337 F.3d 404
(4th Cir. 2003); and, if so, whether that error was plain. We
affirm.
Unless an attorney’s ineffectiveness is conclusively
apparent on the face of the record, ineffective assistance
claims are not generally addressed on direct appeal. United
∗
Milam was informed of his right to file a pro se
supplemental brief, but has not done so.
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States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008); United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999)
(providing standard and noting that ineffective assistance of
counsel claims generally should be raised by motion under 28
U.S.C.A. § 2255 (West Supp. 2010)). Because we find no
conclusive evidence on the record that counsel rendered
ineffective assistance, we decline to consider this claim on
direct appeal.
We review Milam’s sentence using an abuse of
discretion standard of review. Gall v. United States, 552 U.S.
38, 51 (2008). The first step in this review requires us to
ensure that the district court committed no significant
procedural error. United States v. Evans, 526 F.3d 155, 161
(4th Cir. 2008). Procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range or
failing to consider the [18 U.S.C.] § 3553(a) factors.” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal
quotation marks omitted). The district court must make an
individualized assessment based on the facts presented by
applying the relevant § 3553(a) factors to the circumstances of
the case. Gall, 552 U.S. at 51. We then consider the
substantive reasonableness of the sentence, taking into account
the totality of the circumstances. Id.
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Our review of the record leads us to conclude that the
district court did not procedurally err in sentencing Milam. We
find no error in the imposition of the U.S. Sentencing
Guidelines Manual (“USSG”) § 2K2.1(b)(6) enhancement to Milam’s
offense level, and conclude that the district court’s
calculation of Milam’s Guidelines range was correct.
We also conclude that Milam’s sentence is not
substantively unreasonable. A sentence within the properly
calculated Guidelines range is presumptively reasonable. United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). The
110-month sentence is within the properly calculated Guidelines
range, and Milam has failed to rebut the presumption of
reasonableness accorded that sentence.
In accordance with Anders, we have reviewed the entire
record and found no meritorious issues for appeal. We therefore
affirm the district court’s judgment. This court requires that
counsel inform Milam, in writing, of the right to petition the
Supreme Court of the United States for further review. If Milam
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 Milam. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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