UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4283
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT LEE SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:15-cr-00166-WO-1)
Submitted: November 29, 2016 Decided: December 22, 2016
Before TRAXLER, DIAZ, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Kathleen A. Gleason,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Terry Michael Meinecke, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Lee Smith appeals from his conviction and 106-month
sentence entered pursuant to the jury verdict finding him guilty
of possession of a firearm by a convicted felon. On appeal,
counsel has filed a brief under Anders v. California, 386 U.S.
738 (1967), concluding that there are no meritorious issues but
raising the issue of whether Smith’s sentence is substantively
unreasonable. Smith filed a pro se supplemental brief stating
that he received ineffective assistance of trial and appellate
counsel. We affirm.
On appeal, counsel contends that the district court erred
by not giving sufficient weight to Smith’s age and cognitive
issues related to alcohol when fashioning his sentence. We
review the reasonableness of a sentence under 18 U.S.C.
§ 3553(a) (2012) for abuse of discretion. United States v.
Lymas, 781 F.3d 106, 111 (4th Cir. 2015) (citing Gall v. United
States, 552 U.S. 38, 41 (2007)). We presume that a sentence
within the Guidelines range is substantively reasonable. United
States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). The
presumption can only be rebutted by showing that the sentence is
unreasonable when measured against the § 3553(a) factors.
United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
Based on the totality of the circumstances, we find that
Smith failed to rebut the presumption that his sentence is
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reasonable when measured against the § 3553(a) factors, and we
must give due deference to the court’s reasoned and reasonable
decision that those factors justified the sentence that it
imposed. See United States v. Diosdado-Star, 630 F.3d 359, 367
(4th Cir. 2011) (citation and quotation marks omitted). The
district court specifically considered the factors relied upon
by Smith and balanced them against the other factors to arrive
at a sentence below that argued for by the Government. Further,
Smith provides no reason why his age and alcohol abuse should
outweigh his dangerous, repetitive criminal behavior. Thus, we
conclude that the district court reasonably rejected Smith’s
request for a lower sentence and reasonably determined a
sentence towards the lower end of his Guidelines range was
appropriate in this case.
In his pro se supplemental brief, Smith contends that he
received ineffective assistance of trial and appellate counsel.
“It is well established that a defendant may raise a claim of
ineffective assistance of counsel in the first instance on
direct appeal if and only if it conclusively appears from the
record that counsel did not provide effective assistance.”
United States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014).
Absent such a showing, ineffective assistance 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
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States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). We
find that Smith’s claims of ineffective assistance do not
conclusively appear on the record.
In accordance with Anders, we have reviewed the entire
record in the case for meritorious issues and have found none.
Accordingly, we affirm Smith’s conviction and sentence. This
court requires that counsel inform Smith, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Smith 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 Smith. 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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