UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4492
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LANCE RICHARDSON PAGAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:13-cr-00258-RJC-8)
Submitted: January 19, 2016 Decided: April 5, 2016
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Peter Wood, Raleigh, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lance Richardson Pagan pled guilty pursuant to a plea
agreement to conspiracy to distribute and possess with intent to
distribute 280 grams or more of cocaine base and 5 kilograms or
more of cocaine, in violation of 21 U.S.C. § 846 (2012). The
district court calculated Pagan’s Guidelines range under the
U.S. Sentencing Guidelines Manual (2014) at 70 to 87 months’
imprisonment and sentenced Pagan to 84 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 issues for appeal, but raising as issues for review
whether the district court reversibly erred in accepting Pagan’s
guilty plea, whether trial counsel rendered ineffective
assistance, whether the district court abused its discretion in
imposing sentence, and whether the prosecution engaged in
misconduct. Pagan has filed a pro se supplemental brief raising
several issues. The Government elected not to file a brief and
does not seek to enforce the appeal waiver in Pagan’s plea
agreement. * We affirm.
*
Because the Government fails to assert the waiver as a bar
to the appeal, we may consider the issues raised by counsel and
Pagan and conduct an independent review of the record pursuant
to Anders. United States v. Poindexter, 492 F.3d 263, 271
(4th Cir. 2007).
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Because Pagan did not move in the district court to
withdraw his guilty plea, the acceptance of his guilty plea is
reviewed for plain error only. United States v. Martinez,
277 F.3d 517, 524-26 (4th Cir. 2002). To demonstrate plain
error, a defendant must show: (1) there was error; (2) the
error was plain; and (3) the error affected his substantial
rights. United States v. Olano, 507 U.S. 725, 732 (1993). In
the guilty plea context, a defendant meets his burden to
establish that a plain error affected his substantial rights by
showing a reasonable probability that he would not have pled
guilty but for the district court’s Fed. R. Crim. P. 11
omissions. United States v. Massenburg, 564 F.3d 337, 343
(4th Cir. 2009).
Our review of the transcript of the guilty plea hearing
leads us to conclude that the magistrate judge’s omissions did
not affect Pagan’s substantial rights. Additionally, the
transcripts of the guilty plea and sentencing hearings reveal
that the magistrate judge and district court ensured that the
plea was supported by an independent basis in fact and that
Pagan entered the plea knowingly and voluntarily with an
understanding of the consequences. Accordingly, we discern no
plain error in the district court’s acceptance of Pagan’s guilty
plea. See United States v. DeFusco, 949 F.2d 114, 116, 120
(4th Cir. 1991).
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Next, we decline to reach Pagan’s claim of ineffective
assistance of counsel. Unless an attorney’s ineffectiveness
conclusively appears on the face of the record, ineffective
assistance claims generally are not addressed on direct appeal.
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).
Because the record does not conclusively establish ineffective
assistance by Pagan’s trial counsel, we deem this claim
inappropriate for resolution on direct appeal. See United
States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
Turning to Pagan’s 84-month sentence, we review it for
reasonableness “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41, 51 (2007).
This review entails appellate consideration of both the
procedural and substantive reasonableness of the sentence.
Id. at 51.
After determining whether the district court properly
calculated the defendant’s advisory Guidelines range and gave
the parties an opportunity to argue for an appropriate sentence,
we consider whether the district court considered the 18 U.S.C.
§ 3553(a) (2012) factors and any arguments presented by the
parties, selected a sentence based on clearly erroneous facts,
and sufficiently explained the selected sentence. Id. at 49-51.
If the sentence is free of “significant procedural error,” we
review the substantive reasonableness of the sentence, “tak[ing]
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into account the totality of the circumstances.” Id. at 51.
Any sentence within or below a properly calculated Guidelines
range is presumptively substantively reasonable. United
States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied,
135 S. Ct. 421 (2014). Such a presumption can only be rebutted
by a showing that the sentence is unreasonable when measured
against the § 3553(a) factors. Id.
In this case, the district court did not reversibly err in
calculating the Guidelines range and properly heard argument
from counsel and allocution from Pagan. The court explained
that the 84-month sentence was warranted in light of Pagan’s
history and characteristics and the nature of his offense
conduct and the need for the sentence to promote respect for the
law, provide just punishment, afford adequate deterrence, and
protect the public from further crimes by Pagan. Pagan does not
offer any grounds to rebut the presumption on appeal that his
within-Guidelines sentence is substantively reasonable.
Accordingly, we conclude that the district court did not abuse
its discretion in sentencing Pagan.
Next, we review for plain error a prosecutorial misconduct
claim not raised or presented in the district court. United
States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005). To succeed
on a claim of prosecutorial misconduct, a defendant must show
that the prosecutor engaged in improper conduct and that such
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conduct “prejudiced the defendant’s substantial rights so as to
deny the defendant a fair trial.” Id. We have reviewed the
record and find no improper conduct on the part of the
prosecutor that prejudiced Pagan.
Finally, in accordance with Anders, we have reviewed the
remainder of the record in this case and Pagan’s pro se
supplemental brief and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Pagan, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Pagan 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 Pagan.
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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