UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4017
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDREW DAVID OWENS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:13-cr-00069-F-1)
Submitted: August 31, 2015 Decided: September 24, 2015
Before NIEMEYER, MOTZ, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Daniel Johnson, Drew Nelson, WILLIS JOHNSON & NELSON PLLC,
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Unpublished opinions are not binding precedent in this circuit.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:
Andrew David Owens pled guilty to failure to register as a
sex offender, in violation of 18 U.S.C. § 2250 (2012), and was
sentenced to 41 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 grounds for appeal
but questioning whether Owens’ sentence is reasonable. Owens
has submitted letters that we construe as his pro se brief.
Owens alleges that his plea was involuntary, the district court
judge was biased, his extradition to North Carolina was
unlawful, he could not be convicted of this offense in North
Carolina because the state has not enacted the Sex Offender
Registration and Notification Act (SORNA), and assorted claims
of ineffective assistance of counsel. We affirm.
Although Owens claims that his plea was coerced, his sworn
statements at the plea hearing clearly belie his claim. See
Fields v. Att’y Gen. of Md., 956 F.2d 1290, 1299 (4th Cir. 1992)
(“Absent clear and convincing evidence to the contrary, a
defendant is bound by the representations he makes under oath
during a plea colloquy.”). Owens’ claim of judicial bias also
is without merit, as he has failed to identify any act of the
district court demonstrating bias. Liteky v. United States, 510
U.S. 540, 555 (1994) (“[J]udicial rulings alone almost never
constitute a valid basis for a bias or partiality motion.”). As
2
a result of his guilty plea, Owens waived his claim regarding
the transfer from Pennsylvania to North Carolina. See Tollett
v. Henderson, 411 U.S. 258, 267 (1973). Additionally, Owens’
challenge regarding SORNA’s application in North Carolina is
foreclosed by our decision in United States v. Gould, 568 F.3d
459 (4th Cir. 2009).
Turning to Owens’ sentence, we review it for
reasonableness, applying “a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This
review entails appellate consideration of both the procedural
and substantive reasonableness of the sentence. Id. at 51. In
determining procedural reasonableness, we consider whether the
district court properly calculated the advisory Sentencing
Guidelines range, gave the parties an opportunity to argue for
an appropriate sentence, considered the 18 U.S.C. § 3553(a)
(2012) factors, and sufficiently explained the selected
sentence. Id. at 49-51.
If there are no procedural errors, we consider the
substantive reasonableness of the sentence, evaluating “the
totality of the circumstances.” Id. at 51. In the case of a
sentence above the applicable Guidelines range, we take into
account “whether the sentencing court acted reasonably both with
respect to its decision to impose such a sentence and with
respect to the extent of the divergence from the sentencing
3
range.” United States v. Washington, 743 F.3d 938, 944 (4th
Cir. 2014) (internal quotation marks omitted). However, we give
due deference to the sentencing court’s decision because that
court “has flexibility in fashioning a sentence outside of the
Guidelines range,” and need only “set forth enough to satisfy
the appellate court that [it] has considered the parties’
arguments and has a reasoned basis for . . . [its decision].”
United States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir.
2011).
We discern no error in Owens’ sentence. As to procedural
reasonableness, the district court properly calculated Owens’
Guidelines range, considered the parties’ arguments, allowed
Owens an opportunity to allocute, and provided an individualized
explanation for the sentence it imposed, grounded in the
§ 3553(a) factors. Further, the sentence is substantively
reasonable as the court’s decision to depart and the four-month
upward departure were well-reasoned, relying explicitly on U.S.
Sentencing Guidelines Manual § 4A1.3(a)(1) (2014), and the facts
from Owens’ undisputed presentence report.
Finally, Owens raises a variety of ineffective-assistance-
of-counsel claims. 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).
4
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 there
is no demonstrated evidence of ineffective assistance of counsel
on the face of the record, these claims 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 meritorious grounds for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Owens, in writing, of
his right to petition the Supreme Court of the United States for
further review. If Owens 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 Owens.
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
5