UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4963
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM CLIFTON STACEY, SR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:12-cr-00122-TDS-1)
Submitted: June 27, 2014 Decided: July 9, 2014
Before NIEMEYER and KING, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Craig M. Cooley, COOLEY LAW OFFICE, PLLC, Durham, North
Carolina, for Appellant. Frank Joseph Chut, Jr., Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Clifton Stacey, Sr., pled guilty in separate
proceedings to one count of mail fraud and one count of making
false statements. The district court sentenced him to 63
months’ imprisonment. Stacey appeals. His counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that there are no meritorious grounds for appeal, but
questioning whether Stacey was competent to aid in his defense,
whether his guilty pleas were valid, and whether the sentence
imposed is reasonable. Stacey filed a pro se supplemental brief
asserting that he was not competent to aid in his defense,
challenging the adequacy of the Government’s evidence, and
asserting that trial counsel provided ineffective assistance.
We affirm Stacey’s convictions and sentence.
Because Stacey did not contest the Fed. R. Crim. P. 11
proceedings in the district court, we review his challenge to
the validity of his pleas for plain error. See Fed. R. Crim. P.
52(b); United States v. Vonn, 535 U.S. 55, 59 (2002); United
States v. Martinez, 277 F.3d 517, 524-26 (4th Cir. 2002). We
have reviewed the record and conclude that the district court
fully complied with the requirements of Rule 11 in accepting
Stacey’s guilty pleas and committed no plain error.
Stacey asserts that the district court erred in
finding him competent. Prior to the Rule 11 hearings, Stacey
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underwent a pre-trial competency evaluation. In light of the
results of that evaluation and counsel’s observations and
interaction with Stacey, counsel did not request a competency
hearing. Moreover, during the plea hearings, the district court
expressly found Stacey competent to enter the guilty pleas.
This finding was supported by Stacey’s responses to the court’s
inquiries and the fact that he was able to provide explanations
of his medical conditions and details of the offense conduct.
We find no clear error in the court’s determination that Stacey
possessed a “rational as well as factual understanding of the
proceedings against him,” Dusky v. United States, 362 U.S. 402
(1960), and that he was able to assist counsel with his defense.
See Godinez v. Moran, 509 U.S. 389, 402 (1993).
We review Stacey’s sentence for reasonableness under a
“deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). We presume that a sentence
within or below a properly calculated Guidelines range is
substantively reasonable. United States v. Susi, 674 F.3d 278,
289 (4th Cir. 2012).
Stacey challenges the sophisticated means enhancement
imposed by the district court. In determining that Stacey
employed sophisticated means in his mail fraud scheme, the court
noted that Stacey assisted Curetech Industries, Inc., in
preparing a brochure and video to promote the benefits of this
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drug compound that he allegedly invented. He gave the materials
to potential investors and also provided pills, creams, and
lotions that purportedly contained the new drug, which he
claimed — based on fabricated clinical studies — could cure
diabetes and cancer. The court found that the product samples,
the professional-looking promotional materials, and Stacey’s
false representations that he was a scientist, supported the
sophisticated means enhancement. We find no clear error in the
imposition of this enhancement. See United States v. Noel, 502
F. App’x 284, 290 (4th Cir. 2012) (providing standard of
review), cert denied, 134 S. Ct. 366 (2013); United States v.
Jimwright, 683 F.3d 471, 486 (4th Cir. 2012) (providing that
court considers “cumulative impact of the criminal conduct” to
determine whether scheme is “sophisticated”), cert. denied, 133
S. Ct. 843 (2013).
Stacey also contends that the district court abused
its discretion by denying his request for a downward departure
based on his numerous physical, psychological, and neurological
ailments. A district court’s decision not to depart from the
Sentencing Guidelines is not reviewable unless the court
mistakenly believed that it lacked authority to depart. United
States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008); United
States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992). The district
court expressly noted Stacey’s medical needs, acknowledged its
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authority to depart, but declined to do so. Because the court
was under no misperception as to its authority, its refusal to
depart is not subject to appellate review. See United States v.
Edwards, 188 F.3d 230, 238 (4th Cir. 1999).
Stacey also contends that the 63-month sentence is
unreasonable because of his numerous medical, psychological and
neurological ailments. We note that the district court properly
calculated Stacey’s advisory Guidelines range and heard argument
from counsel and allocution from Stacey. The court considered
the 18 U.S.C. § 3553(a) (2012) factors, explaining that a
within-Guidelines sentence was appropriate in light of the
factors. The court did consider Stacey’s medical conditions in
mitigation, but determined that he could receive appropriate
treatment in the Bureau of Prisons. Reviewing the
reasonableness of this sentence, we defer to the district
court’s decision that this sentence achieved the purposes of
sentencing in Stacey’s case. See United States v. Jeffery, 631
F.3d 669, 679 (4th Cir. 2011) (“[D]istrict courts have extremely
broad discretion when determining the weight to be given each of
the § 3553(a) factors.”). Stacey has failed to overcome the
appellate presumption that his within-Guidelines sentence is
substantively reasonable. Accordingly, we conclude that the
district court did not abuse its discretion in imposing
sentence.
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Stacey also avers that his attorney provided
ineffective assistance. To establish ineffective assistance of
counsel, Stacey must show that: (1) counsel’s performance fell
below an objective standard of reasonableness; and (2) counsel’s
deficient performance was prejudicial. Strickland v.
Washington, 466 U.S. 668, 687 (1984). However, claims of
ineffective assistance of counsel are generally not cognizable
on direct appeal, unless counsel’s “ineffectiveness conclusively
appears from the record.” United States v. Baldovinos, 434 F.3d
233, 239 (4th Cir. 2006). Here, the record does not
conclusively demonstrate that counsel was ineffective. As such,
Stacey’s claims are not cognizable on direct appeal; instead, he
can bring these claims in a 28 U.S.C. § 2255 (2012) proceeding
where he can further develop the record.
In accordance with Anders, we have examined the entire
record in this case and have found no meritorious issues for
review. Accordingly, we affirm Stacey’s convictions and
sentence. This court requires that counsel inform Stacey, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Stacey 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 Stacey. We dispense
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with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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