UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4725
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RICKY GUNTER, a/k/a Veejay Gunter,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:14-cr-00053-JAB-1)
Submitted: April 16, 2015 Decided: April 20, 2015
Before AGEE and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Tiffany T. Jefferson,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Lisa Blue Boggs, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricky Gunter appeals from his conviction and 220-month
sentence imposed pursuant to his guilty plea to distribution of
cocaine base. Gunter’s counsel filed an Anders v. California,
386 U.S. 738 (1967) brief, stating that he found no meritorious
grounds for appeal but questioning the substantive
reasonableness of Gunter’s sentence. Gunter filed a pro se
brief supplementing counsel’s argument and also averring that
counsel was ineffective at sentencing. We affirm.
Gunter first contends that his sentence was greater than
necessary to accomplish the goals of sentencing. While counsel
provides no specific argument, Gunter contends that the district
court did not adequately consider the victimless, nonviolent,
and low-level nature of his crime. Gunter further asserts that
the district court did not adequately take into account the goal
of rehabilitation and the overcrowding of prisons.
We review sentences for substantive reasonableness “under a
deferential abuse-of-discretion standard,” considering the
“totality of the circumstances.” Gall v. United States, 552
U.S. 38, 41, 51 (2007). If the sentence is within the properly
calculated Guidelines range, we presume that the sentence is
substantively reasonable. United States v. Yooho Weon, 722 F.3d
583, 590 (4th Cir. 2013). Because there is a range of
permissible outcomes for any given case, an appellate court must
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resist the temptation to “pick and choose” among possible
sentences and rather must “defer to the district court's
judgment so long as it falls within the realm of these
rationally available choices.” United States v. McComb, 519
F.3d 1049, 1053 (10th Cir. 2007).
Here, the district court explicitly determined that Gunter’s
criminal behavior was serious and that his prior sentences had
not deterred him. The court also considered his acceptance of
responsibility and desire for rehabilitation. In addition, the
presentence report, to which Gunter did not object, described
repeated involvement in serious and violent offenses and failed
attempts at rehabilitation. Gunter’s argument is essentially
just a disagreement with the district court’s weighing of the
statutory factors. Because Gunter has failed to rebut the
presumption of reasonableness, we conclude that his sentence is
substantively reasonable.
We decline to reach Gunter’s claim that counsel was
ineffective. Unless an attorney’s ineffectiveness conclusively
appears on the face of the record, ineffective assistance claims
are not generally addressed on direct appeal. United States v.
Benton, 523 F.3d 424, 435 (4th Cir. 2008). Instead, such claims
should be raised in a motion brought pursuant to 28 U.S.C.
§ 2255 (2012), in order to permit sufficient development of the
record. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th
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Cir. 2010). Because the record does not conclusively establish
ineffective assistance of counsel, we conclude that this claim
should be raised, if at all, in a § 2255 motion.
In accordance with Anders, we have reviewed the entire
record in this case and have found no other potentially
meritorious grounds for appeal. Accordingly, we affirm the
district court’s judgment. This court requires that counsel
inform Gunter, in writing, of his right to petition the Supreme
Court of the United States for further review. If Gunter
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, counsel may move in this
court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Gunter. 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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