UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4594
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL LEE CUTTER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00053-MR-1)
Submitted: June 30, 2011 Decided: July 5, 2011
Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, David A.
Thorneloe, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Lee Cutter appeals the judgment imposed after
he pleaded guilty to using a computer and the internet to
persuade a person under the age of eighteen to engage in a
sexual activity for which Cutter could be charged, in violation
of 18 U.S.C. § 2422(b) (2006). Counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious issues for appeal, but
questioning whether Cutter received ineffective assistance of
counsel at sentencing. Cutter did not file a pro se
supplemental brief and the Government elected not to file a
brief. Finding no error, we affirm.
To prove a claim of ineffective assistance of counsel,
a defendant must show (1) “that counsel’s performance was
deficient,” and (2) “that the deficient performance prejudiced
the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). With respect to the first prong, “the defendant must
show that counsel’s representation fell below an objective
standard of reasonableness.” Id. at 688. In addition,
“[j]udicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689.
This court may address a claim of ineffective
assistance on direct appeal only if the lawyer’s ineffectiveness
conclusively appears on the record. United States v.
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Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). From the facts
before us, it appears counsel objected to the eight-level
sentencing enhancement, argued for a downward variance to the
statutory minimum sentence, and performed adequately. We have
reviewed the record and conclude that ineffective assistance of
counsel does not conclusively appear on the face of the record.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Cutter’s conviction and sentence. This
court requires that counsel inform Cutter, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Cutter 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 Cutter. 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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