UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4773
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAMIEN ANTWON EVANS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:13-cr-00050-FL-1)
Submitted: April 29, 2015 Decided: May 12, 2015
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dhamian A. Blue, BLUE STEPHENS & FELLERS LLP, Raleigh, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Damien Antwon Evans pled guilty, pursuant to a plea
agreement, to possession of a firearm and ammunition by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012).
The court sentenced Evans to 188 months’ imprisonment, the
bottom of the Sentencing Guidelines range. Counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious grounds for appeal but
raising as potential issues whether the court abused its
discretion in denying Evans’ motion for substitute counsel and
whether various aspects of Evans’ sentence were erroneous,
including Evans’ designation as an armed career criminal, the
application of U.S. Sentencing Guidelines Manual
§ 4B1.4(b)(3)(A) (2013), and the denial of the motion for
downward variance and/or departure. Evans has filed a pro se
supplemental brief, raising numerous issues, including whether
sentencing counsel provided effective assistance and whether the
court erred in sentencing him under the Armed Career Criminal
Act (“ACCA”). We affirm.
We review a district court’s ruling on a motion to
substitute counsel for abuse of discretion. United States v.
Blackledge, 751 F.3d 188, 194 (4th Cir. 2014). Three factors
are considered in reviewing the denial of such a motion: “(1)
timeliness of the motion; (2) adequacy of the court’s inquiry
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[into the factual basis of defendant’s dissatisfaction]; and (3)
whether the attorney/client conflict was so great that it had
resulted in total lack of communication preventing an adequate
defense.” Id. (internal quotation marks omitted). These
factors are balanced “against the district court’s interest in
the orderly administration of justice.” United States v. Perez,
661 F.3d 189, 191 (4th Cir. 2011) (internal quotation marks
omitted). We conclude that the court did not abuse its
discretion, since Evans’ motion was made after the start of the
sentencing hearing, the court inquired into the reasons for
Evans’ motion and also questioned counsel before denying the
motion, and the record provides no evidence of an attorney-
client conflict hindering communication.
Next, counsel and Evans contest whether Evans’ designation
as an armed career criminal was proper. When considering
whether a defendant was properly sentenced as an armed career
criminal, we review the district court’s legal conclusions de
novo and its factual findings for clear error. United States v.
McDowell, 745 F.3d 115, 120 (4th Cir. 2014), cert. denied, 135
S. Ct. 942 (2015). Because Evans raises this claim for the
first time on appeal, it is reviewed for plain error. Henderson
v. United States, 133 S. Ct. 1121, 1126-27 (2013).
Under the ACCA, if a defendant is convicted of being a
felon in possession of a firearm and has sustained at least
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three prior convictions for violent felonies or serious drug
offenses committed on occasions different from one another, the
defendant is subject to an enhanced sentence. 18 U.S.C.
§ 924(e)(1) (2012). Here, Evans pled guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),
and his presentence report noted that he previously pled guilty
to four common law robbery charges, which occurred on different
occasions from one another and each resulted in a sentence of
more than a year. These robbery counts constitute violent
felonies under the ACCA. 18 U.S.C. § 924(e)(2)(B)(ii); see also
United States v. Carmichael, 408 F. App’x 769, 770-71 (4th Cir.
2011) (No. 09-4963) (concluding that common law robbery under
North Carolina law is crime of violence). Accordingly, we
conclude that the district court correctly sentenced Evans as an
armed career criminal.
Next, counsel questions whether the district court erred in
applying an offense level of 34 after finding by a preponderance
of the evidence that Evans possessed the firearm in connection
with a crime of violence. See USSG § 4B1.4(b)(3)(A). Here, the
sentencing court concluded that Evans possessed the firearm and
ammunition in connection with the state offense of feloniously
fleeing to elude arrest. See N.C. Gen. Stat. § 20-141.5(a)-(b)
(2013). In determining that the offense was a felony rather
than a misdemeanor under North Carolina law, the sentencing
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court was required to find the presence of two or more
aggravating factors enumerated in the statute. Id. § 20-
141.5(b) Based on evidence presented at sentencing, the court
found that at least two of the factors, reckless driving and
driving with his license revoked, § 20-141.5(b)(3), (5), were
present. Evans offered no evidence to dispute these two
factors. Thus, the court’s factual findings that Evans was
driving recklessly and without a license were supported by a
preponderance of the evidence and therefore were not clearly
erroneous. See United States v. White, 771 F.3d 225, 235 (4th
Cir. 2014) (stating standard of review), cert. denied, __ U.S.
__, 83 U.S.L.W. 3743 (U.S. Mar. 23, 2015) (No. 14-8442).
We review de novo the court’s legal conclusion that Evans
possessed a firearm in connection with a crime of violence. Id.
For purposes of USSG § 4B1.4(b)(3)(A), a crime of violence is
“any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that . . . involves
conduct that presents a serious potential risk of physical
injury to another.” USSG § 4B1.2(a)(2). Coupled with the two
aggravating factors, Evans’ actions constituted the state
criminal offense of felonious fleeing to elude arrest under N.C.
Gen. Stat. § 20-141.5(a)-(b). The Supreme Court has previously
stated that “[f]elony vehicle flight is a violent felony for
purposes of [the] ACCA.” Sykes v. United States, 131 S. Ct.
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2267, 2277 (2011); see also United States v. Scott, 521 F. App’x
112, 114 (4th Cir. 2013) (per curiam) (holding that fleeing to
elude arrest under N.C. Gen. Stat. § 20-141.5 constitutes crime
of violence for purposes of USSG § 4B1.4(b)(3)(A)). Therefore,
the district court correctly concluded that Evans committed a
crime of violence in connection with his possession of a
firearm, meriting application of an offense level of 34 as
provided by § 4B1.4(b)(3)(A).
Finally, counsel questions whether Evans’ sentence of 188
months’ imprisonment was reasonable, focusing specifically on
whether the court erred when it denied the motion for downward
departure and/or variance. We apply “an abuse-of-discretion
standard” when reviewing a sentence for reasonableness. Gall v.
United States, 552 U.S. 38, 51 (2007). We first examine the
district court’s sentence for “significant procedural error,”
including “failing to calculate (or improperly calculating) the
Guidelines range, . . . failing to consider the [18 U.S.C.]
§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.” Id.
If we find no significant procedural error, we examine the
substantive reasonableness of a sentence under “the totality of
the circumstances.” Id. The sentence imposed must be
“sufficient, but not greater than necessary,” to satisfy the
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goals of sentencing. 18 U.S.C. § 3553(a). We presume on appeal
that a within-Guidelines sentence is substantively reasonable.
United States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert.
denied, 135 S. Ct. 421 (2014). The defendant can rebut that
presumption only “by showing that the sentence is unreasonable
when measured against the 18 U.S.C. § 3553(a) factors.” Id.
We conclude that the district court satisfied the
procedural requirements by correctly calculating Evans’
Guidelines range; considering the parties’ arguments, Evans’
allocution, and the § 3553(a) factors; and providing an
individualized assessment fully grounded in those factors. As
to substantive reasonableness, we conclude that Evans has failed
to rebut the presumption of reasonableness accorded to his
within-Guidelines sentence. As indicated by the court’s
statements on record, the court found that the totality of the
circumstances warranted a sentence at the bottom of the
Guidelines range but not a downward variance or departure. Such
a determination is within the discretion of the sentencing court
and is not an abuse of discretion.
Evans also contends that sentencing counsel’s assistance
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); see
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United States v. Smith, 640 F.3d 580, 587 (4th Cir. 2011)
(stating that ineffective assistance is conclusively established
where appellate court “need not look beyond the trial court
record brought . . . in a direct appeal”); see also Strickland
v. Washington, 466 U.S. 668, 687 (1984) (providing standard for
ineffective-assistance claims). 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 Cir. 2010).
Because the record does not conclusively establish ineffective
assistance of counsel, we conclude that these claims should be
raised, if at all, in a § 2255 motion.
We have reviewed the record and the other arguments Evans
raises in his pro se supplemental brief and conclude that they
are without merit. We therefore affirm the district court’s
judgment. This court requires that counsel inform Evans, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Evans 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 Evans.
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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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