UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4537
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARCHIE LARUE EVANS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:12-cr-00575-RBH-1)
Submitted: June 29, 2015 Decided: July 8, 2015
Before KING and KEENAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jessica Salvini, SALVINI & BENNETT, LLC, Greenville, South
Carolina, for Appellant. William E. Day, II, Assistant United
States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Archie LaRue Evans
pled guilty to one count of mail fraud, in violation of 18
U.S.C. § 1341 (2012), and one count of conspiracy to structure
transactions with a financial institution to evade currency
reporting requirements, in violation of 18 U.S.C. § 371 (2012).
The district court sentenced Evans to 84 months in prison, a
slight downward variance from the 87 to 108-month Sentencing
Guidelines range. Evans timely appealed.
Evans’ 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 asserting that Evans did not
knowingly and voluntarily waive his right to appeal, and
questioning the reasonableness of Evans’ sentence. Counsel also
advances claims of ineffective assistance of trial counsel and
prosecutorial misconduct. For the reasons that follow, we
affirm.
As a preliminary matter, Evans’ plea agreement contained a
waiver-of-appellate-rights provision. However, the Government
has not asserted the appellate waiver as a basis for dismissing
this appeal and we decline to sua sponte enforce appellate
waivers. See generally, United States v. Blick, 408 F.3d 162,
168 (4th Cir. 2005) (citing United States v. Brock, 211 F.3d 88,
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90 n.1 (4th Cir. 2000)). We therefore need not consider whether
Evans knowingly and voluntarily waived his right to appeal.
We next review Evans’ sentence for both procedural and
substantive reasonableness “under a deferential abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 41
(2007). We must “ensure that the district court committed no
significant procedural error, such as . . . improperly
calculating[] the Guidelines range.” Id. at 51. If there is no
significant procedural error, we then consider the sentence’s
substantive reasonableness under “the totality of the
circumstances, including the extent of any variance from the
Guidelines range.” Id. We presume that a sentence below a
properly calculated Guidelines range is reasonable. United
States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014), cert.
denied, 135 S. Ct. 421 (2014). A defendant can rebut this
presumption only “by showing that the sentence is unreasonable
when measured against the [18 U.S.C.] § 3553(a) [(2012)]
factors.” Id. After reviewing the presentence report and the
sentencing transcript, we conclude that Evans’ below-Guidelines
sentence is both procedurally and substantively reasonable.
Evans also asserts that both his privately-retained
attorney and the court-appointed public defender were
ineffective. To succeed on a claim of ineffective assistance of
counsel, Evans must show that (1) counsel’s performance was
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constitutionally deficient and (2) such deficient performance
was prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984). To satisfy the performance prong, Evans must
demonstrate that counsel’s performance fell below an objective
standard of reasonableness under prevailing professional norms.
Id. at 688. The prejudice prong is satisfied, within the
context of a guilty plea, if Evans can demonstrate “a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill
v. Lockhart, 474 U.S. 52, 59 (1985).
Unless an attorney’s ineffectiveness conclusively appears
on the face of the record, such claims are not generally
addressed on direct appeal, United States v. Benton, 523 F.3d
424, 435 (4th Cir. 2008), but rather 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 Evans should raise these claims, if at
all, in a § 2255 motion.
Finally, Evans contends that prosecutorial misconduct
occurred throughout the proceedings. We find no support in the
record for his claims.
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. * We therefore affirm Evans’ convictions and sentence.
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. 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
* Evans filed a pro se supplemental brief asserting numerous
challenges to his guilty plea and sentence. We have reviewed
Evans’ pro se supplemental brief and conclude that he is not
entitled to relief on any of the claims raised.
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