UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4553
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES ANTONIO LANGSTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Robert J. Conrad, Jr., District Judge. (3:15-cr-00271-RJC-1)
Submitted: April 7, 2017 Decided: April 13, 2017
Before AGEE, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew G. Pruden, TIN, FULTON, WALKER & OWEN, PLLC, Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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:
James Antonio Langston appeals his conviction and 120-month sentence imposed
following his guilty plea to conspiracy to distribute and possess with intent to distribute
500 grams or more of cocaine, in violation of 21 U.S.C. § 846 (2012). On appeal,
Langston’s 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 questioning whether the
district court erred in denying his request for a variance on the ground that his career
offender enhancement under the Sentencing Guidelines overstated his criminal history
and resulted in an unwarranted sentencing disparity. Langston has filed a pro se
supplemental brief, raising claims of ineffective assistance of counsel and prosecutorial
misconduct. The Government has declined to file a response brief. For the reasons that
follow, we affirm.
We review a sentence for reasonableness, applying a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). We first must ensure
that the district court committed no significant procedural error, such as improper
calculation of the Guidelines range, inadequate consideration of the 18 U.S.C. § 3553(a)
(2012) factors, or insufficient explanation of the sentence imposed. United States v.
Martinovich, 810 F.3d 232, 242 (4th Cir. 2016). In considering challenges to a
Guidelines enhancement, we “review factual findings for clear error and legal
conclusions de novo.” United States v. Adepoju, 756 F.3d 250, 256 (4th Cir. 2014).
If we find no significant procedural error, we also must consider the substantive
reasonableness of the sentence. United States v. Diosdado-Star, 630 F.3d 359, 363 (4th
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Cir. 2011). A sentence must be “sufficient, but not greater than necessary,” to satisfy the
statutory purposes of sentencing. 18 U.S.C. § 3553(a). We presume that a sentence
below a properly calculated Guidelines range is substantively reasonable. United States
v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). Langston bears the burden to rebut this
presumption “by showing that the sentence is unreasonable when measured against the
18 U.S.C. § 3553(a) factors.” Id.
On appeal, Langston’s counsel first asserts that the court should not have relied
upon Langston’s 2012 North Carolina convictions to support his career offender
enhancement because those offenses were not punishable by more than one year of
imprisonment, despite the fact that he was actually sentenced to 8 to 19 months’
imprisonment for those offenses. Even assuming, without deciding, that Langston’s
assertion is correct, the district court properly determined that this objection had no
impact on the propriety of Langston’s career offender enhancement, as he had two
remaining predicate convictions to support the enhancement. See U.S. Sentencing
Guidelines Manual §§ 4A1.2(e)(1), 4B1.1, 4B1.2(b), (c) (2015). Further, the district
court acted well within its discretion in considering Langston’s 2012 convictions when
evaluating his request for a downward variance, particularly in light of their similarity
both to his more remote career offender predicates and to the conduct underlying his
federal conviction.
Counsel also challenges the substantive reasonableness of Langston’s sentence,
reiterating arguments raised before the sentencing court in support of a downward
variance. Specifically, counsel argues that Langston’s Guidelines range, as established
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by his career offender enhancement, overrepresents his criminal history and creates an
unwarranted sentencing disparity. Counsel observes that Langston’s predicates were
committed in 1993 and 1994, at a young age, and close in time to one another. Langston
committed each of these offenses before being sentenced for any of them, counsel notes,
and his sentences ran concurrent to one another. Counsel also argues that, because
Langston committed these offenses in South Carolina, the sentences he received were
longer than they would have been if he had committed the same offenses in North
Carolina; as a result, they were classifiable as career offender predicates because the
lengthy sentences extended into the 15-year period preceding his underlying offense
conduct. See USSG §§ 4A1.2(e)(1), 4B1.2 cmt. n.3. Due to this discrepancy in state
sentencing, counsel argues, Langston’s career offender enhancement created an
unjustified disparity compared to similarly situated offenders.
While we acknowledge that Langston’s arguments may have provided
nonfrivolous bases upon which the district court could have relied to vary downward, we
do not find these arguments so compelling as to rebut the presumption of substantive
reasonableness accorded Langston’s below-Guidelines sentence. See Louthian, 756 F.3d
at 306. As the district court observed, Langston’s North Carolina convictions revealed a
continued pattern of drug trafficking conduct connecting his remote South Carolina
predicates and his federal offense. Langston’s involvement in drug activity during this
more proximate period significantly undermined his argument that the career offender
enhancement overestimated his criminal history and likelihood of future involvement in
drug offenses. It also undercut Langston’s implicit assertion that his predicate offenses,
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committed at a young age and before he had been sentenced to any prison term for his
crimes, were not representative of his more recent development and conduct. As the
district court observed, the 25-year sentences Langston received in South Carolina state
court should have deterred him from further drug activity, yet he continued to offend in
2011 and during the conduct underlying his federal offense. Langston also was sentenced
significantly below the Guidelines range established by his career offender enhancement,
due in part to the Government’s sentencing arguments and agreement to withdraw his 21
U.S.C. § 851 (2012) information. In view of these factors, we discern no abuse of
discretion in the court’s decision not to vary further below the Guidelines range.
Turning to the arguments in Langston’s pro se supplemental brief, Langston
alleges both ineffective assistance of trial counsel and prosecutorial misconduct. “Unless
an attorney’s ineffectiveness conclusively appears on the face of the record, such claims
are not addressed on direct appeal.” United States v. Faulls, 821 F.3d 502, 507–08 (4th
Cir. 2016). Because no such ineffective assistance conclusively appears on the record
before us, we decline to consider Langston’s ineffective assistance of counsel claims at
this juncture. Instead, Langston’s claims should be raised, if at all, in a 28 U.S.C. § 2255
(2012) motion. See id. at 508; United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir.
2010).
Because Langston did not raise his prosecutorial misconduct claims in the district
court, we review these issues for plain error. United States v. Alerre, 430 F.3d 681, 689
(4th Cir. 2005). To prevail on his claims of prosecutorial misconduct, Langston must
demonstrate both misconduct by the prosecutor and resulting prejudice. United States v.
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Caro, 597 F.3d 608, 624–25 (4th Cir. 2010). As our review of the available record
reveals neither, Langston’s claims are unavailing.
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious issues for appeal. We therefore deny Langston’s pro se
motion for abeyance and affirm Langston’s criminal judgment. This court requires that
counsel inform Langston, in writing, of the right to petition the Supreme Court of the
United States for further review. If Langston 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 Langston.
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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