UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4571
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DARIUS HENNING,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:15-cr-00029-IMK-JSK-1)
Submitted: March 17, 2016 Decided: March 21, 2016
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kristen M. Leddy, Research and Writing Specialist, Martinsburg,
West Virginia, for Appellant. Zelda Elizabeth Wesley, Assistant
United States Attorney, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darius Henning appeals his convictions and 63-month
sentence imposed following his guilty plea to one count of being
a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2012), and one count of possession of a
stolen firearm, in violation of 18 U.S.C. §§ 922(j)(1),
924(a)(2) (2012). Henning’s attorney filed a brief, pursuant to
Anders v. California, 386 U.S. 738 (1967), conceding there are
no meritorious grounds for appeal, but suggesting as a possible
issue for review whether the district court committed reversible
error when it declined to impose a downward variant sentence to
account for time Henning will serve in state custody for parole
revocation for conduct related to his federal crimes. Henning
has filed a pro se supplemental brief asserting he received
ineffective assistance of counsel. The Government has declined
to file a responsive brief. Finding no error, we affirm.
We review Henning’s sentence for reasonableness, applying
an abuse-of-discretion standard. Gall v. United States, 552
U.S. 38, 46 (2007). This review requires our consideration of
both the procedural and substantive reasonableness of the
sentence. Id. at 51. We first assess whether the district
court properly calculated the advisory Sentencing Guidelines
range, considered the factors set forth at 18 U.S.C. § 3553(a)
(2012), analyzed any arguments presented by the parties, and
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sufficiently explained the selected sentence. Id. at 49–51; see
United States v. Lynn, 592 F.3d 572, 575–76 (4th Cir. 2010). If
we find no procedural error, we review the sentence for
substantive reasonableness, “examin[ing] the totality of the
circumstances[.]” United States v. Mendoza–Mendoza, 597 F.3d
212, 216 (4th Cir. 2010). “Any sentence that is within or below
a properly calculated Guidelines range is presumptively
[substantively] reasonable” and “[s]uch a presumption can only
be rebutted by showing that the sentence is unreasonable when
measured against the 18 U.S.C. § 3553(a) factors.” United
States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied,
___ U.S. ___, 135 S. Ct. 421 (2014).
We conclude that Henning’s sentence is reasonable. The
district court correctly calculated Henning’s Guidelines range,
listened to counsel’s argument, afforded Henning an opportunity
to allocute, and adequately explained its reasons for imposing
the 63-month, within-Guidelines sentence. We find no reversible
error in the district court’s failure to impose a downward
variant sentence. First, counsel never requested a downward
variant sentence. Moreover, ordering Henning’s federal sentence
to run consecutive to any state sentences he was then serving is
consistent with the Guidelines, and the district court
thoroughly justified its sentence under the § 3553(a) factors.
See USSG § 5G1.3 (2014). Accordingly, Henning’s Guidelines
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sentence is presumptively substantively reasonable, see United
States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012), and we
discern no basis in the record to overcome this presumption.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. * We
therefore affirm the district court’s judgment. This court
requires counsel to inform Henning, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Henning requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court to withdraw from representation.
Counsel’s motion must state that a copy of the motion was served
on Henning. 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
* To the extent Henning argues that trial counsel was
ineffective, we conclude that he has not made the requisite
showing to assert an ineffective assistance claim on direct
appeal and that this claim should be raised, if at all, in a
motion under 28 U.S.C. § 2255 (2012). See United States v.
Benton, 523 F.3d 424, 435 (4th Cir. 2008) (“Ineffective
assistance claims are generally not cognizable on direct appeal
. . . unless it conclusively appears from the record that
defense counsel did not provide effective representation.”
(internal quotation marks omitted)).
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