United States v. Jermaine Baines

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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