UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4783
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILKINS MCNAIR, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:09-cr-00320-CCB-1)
Submitted: July 28, 2011 Decided: August 1, 2011
Before SHEDD, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David W. Lease, SMITH, LEASE & GOLDSTEIN, LLC, Rockville,
Maryland, for Appellant. Jonathan Biran, Jefferson McClure
Gray, Assistant United States Attorneys, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wilkins McNair, Jr., pled guilty to one count of wire
fraud and one count of witness tampering. The district court
sentenced him to 70 months’ imprisonment. McNair’s attorney
filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), stating that, in counsel’s view, there are no
meritorious issues for appeal, but noting that McNair questioned
the validity of his guilty plea and asserted that counsel was
ineffective for failing to investigate, failing to challenge the
Sentencing Guidelines calculations, and for recommending that he
plead guilty. After being advised of his right to file a brief,
McNair elected not to file a pro se supplemental brief. We
affirm.
In the absence of a motion to withdraw a guilty plea,
this court reviews the adequacy of the guilty plea pursuant to
Fed. R. Crim. P. 11 for plain error. See United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Our review of the
transcript of the plea hearing leads us to conclude that the
district court fully complied with Rule 11 in accepting McNair’s
guilty plea. The court ensured that McNair understood the
charges against him and the potential sentences he faced, that
he entered his plea knowingly and voluntarily, and that the plea
was supported by an independent factual basis. See United
2
States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).
Accordingly, we affirm McNair’s conviction.
We have reviewed McNair’s sentence and determined that
it was properly calculated and that the sentence imposed was
reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007);
United States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010). The
district court followed the necessary procedural steps in
sentencing McNair, appropriately treated the sentencing
Guidelines as advisory, properly calculated and considered the
applicable Guidelines range, and weighed the relevant 18 U.S.C.
§ 3553(a) (2006) factors in light of McNair’s individual
characteristics and circumstances. The district court
adequately explained its reasons for denying McNair’s request
for a variance, noting that McNair had engaged in a “substantial
pattern of fraud.” In light of McNair’s medical condition and
the government’s recommendation of a sentence at the low end of
the advisory Guidelines range, however, the court imposed a 70-
month sentence. Because the court adequately explained its
reasons for the sentence imposed, we conclude that the sentence
is not an abuse of discretion and is reasonable. See Gall, 552
U.S. at 41; United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007) (applying appellate presumption of reasonableness to
within-Guidelines sentence).
3
McNair also questions whether counsel provided
constitutionally ineffective assistance by failing to
investigate, failing to challenge the computation of the
Guidelines range, and for recommending that he plead guilty.
Claims of ineffective assistance of counsel are not cognizable
on direct appeal unless the record conclusively establishes
counsel’s constitutionally inadequate performance. United
States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
Because the record does not conclusively demonstrate that
McNair’s counsel was ineffective, we decline to consider this
claim on direct appeal.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. This court requires that counsel inform McNair, in
writing, of the right to petition the Supreme Court of the
United States for further review. If McNair 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 McNair. 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