UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4411
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERMAINE LONNIE BAINES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:13-cr-00255-NCT-2)
Submitted: December 10, 2014 Decided: January 27, 2015
Before DUNCAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Sarah Jessica Farber, FARBER LAW FIRM, Raleigh, North Carolina,
for Appellant. Kyle David Pousson, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jermaine Lonnie Baines pled guilty pursuant to a plea
agreement to conspiracy to interfere with commerce by robbery,
in violation of 18 U.S.C. § 1951(a) (2012), and possession of
firearms in furtherance of a crime of violence and a drug
trafficking crime, in violation of 18 U.S.C. §§ 2,
924(c)(1)(A)(i) (2012). The district court calculated Baines’
Guidelines range at 262 to 327 months’ imprisonment,
U.S. Sentencing Guidelines Manual (2013), and sentenced Baines
to a total prison term of 262 months’ imprisonment.
On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but raising as an issue
for review whether the district court abused its discretion in
imposing sentence. Baines has filed a pro se supplemental brief
in which he challenges the district court’s calculation of his
Guidelines range and the effectiveness of trial counsel’s
assistance. The Government declined to file a brief.
We affirm.
We review Baines’ sentence for reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41, 51 (2007). This review entails
appellate consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. In determining
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procedural reasonableness, we consider whether the district
court properly calculated the defendant’s advisory Guidelines
range, gave the parties an opportunity to argue for an
appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012)
factors, selected a sentence based on clearly erroneous facts,
and sufficiently explained the selected sentence. Id. at 49–51.
If the sentence is free of “significant procedural
error,” we review it for substantive reasonableness, “tak[ing]
into account the totality of the circumstances.” Id. at 51. If
the sentence is within or below the properly calculated
Guidelines range, we apply a presumption on appeal that the
sentence is substantively reasonable. United States v.
Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421 (2014). Such a presumption is rebutted only if the
defendant shows “that the sentence is unreasonable when measured
against the 18 U.S.C. § 3553(a) factors.” Id.
In this case, the district court correctly calculated
and considered the advisory Guidelines range, heard argument
from counsel, and heard allocution from Baines. The court
explained that the within-Guidelines sentence was warranted in
light of the nature and circumstances of Baines’ offense conduct
and his history and characteristics. 18 U.S.C. § 3553(a)(1).
We reject as without merit counsel’s argument that the 262-month
sentence is substantively unreasonable in light of Baines’
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personal, health, and offense circumstances and the district
court’s alleged failure to afford “enough weight” to the role
Government agents played in Baines’ offense conduct because it
essentially asks this court to substitute its judgment for that
of the district court. While this court may have weighed the
§ 3553(a) factors differently had it imposed sentence in the
first instance, we defer to the district court’s decision that a
262-month sentence achieved the purposes of sentencing in
Baines’ case. See Gall, 552 U.S. at 51 (explaining that
appellate courts “must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole,
justify” the sentence imposed); United States v. Rivera-Santana,
668 F.3d 95, 105 (4th Cir. 2012) (stating it was within district
court’s discretion to accord more weight to a host of
aggravating factors in defendant’s case and decide that the
sentence imposed would serve the § 3553 factors on the whole).
In light of the “extremely broad” discretion afforded to a
district court in determining the weight to be given each of the
§ 3553(a) factors in imposing sentence, United States v.
Jeffery, 631 F.3d 669, 679 (4th Cir. 2011), Baines fails to
overcome the presumption that his Guidelines sentence is
substantively reasonable.
In his pro se supplemental brief, Baines also claims
that trial counsel rendered ineffective assistance. After
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review of the record, we find this claim inappropriate for
resolution on direct appeal. Because the record does not
conclusively establish ineffectiveness of counsel, Baines must
assert such a claim, if at all, in a motion pursuant to 28 U.S.C
§ 2255 (2012). United States v. Baptiste, 596 F.3d 214, 216 n.1
(4th Cir. 2010).
Finally, in accordance with Anders, we have reviewed
the remainder of the record in this case and have found no
meritorious issues for appeal. We therefore affirm the district
court’s judgment. This court requires that counsel inform
Baines, in writing, of the right to petition the Supreme Court
of the United States for further review. If Baines 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 Baines.
We dispense 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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