UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4436
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEEWANIE LAMONT BLACKBURN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:17-cr-00275-WO-1)
Submitted: January 22, 2019 Decided: January 24, 2019
Before MOTZ, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro, North Carolina, for
Appellant. Robert Albert Jamison Lang, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keewanie Lamont Blackburn pled guilty, pursuant to a written plea agreement, to
being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2)
(2012). The district court sentenced Blackburn to 50 months of imprisonment. On
appeal, Blackburn’s counsel has submitted a brief pursuant to Anders v. California, 386
U.S. 738 (1967), certifying that there are no meritorious grounds for appeal, but raising
whether Blackburn received ineffective assistance of counsel at trial, whether there was
prosecutorial misconduct related to video footage offered at a motion to suppress
evidence hearing, whether the court erred in denying the motion to suppress, whether the
district court should have granted the motion to suppress, and whether Blackburn’s
upward variance sentence is reasonable. Blackburn filed a pro se supplemental brief and
the Government declined to file a reply brief. We affirm.
Blackburn’s counsel questioned whether Blackburn received effective assistance
of trial counsel. Claims of ineffective assistance of counsel “are generally not cognizable
on direct appeal.” United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008); see United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Instead, to allow for adequate
development of the record, a defendant must ordinarily bring his claims in a 28 U.S.C.
§ 2255 (2012) motion. King, 119 F.3d at 295. However, we may entertain such claims
on direct appeal only if “it conclusively appears from the record that defense counsel did
not provide effective representation.” United States v. Richardson, 195 F.3d 192, 198
(4th Cir. 1999) (internal quotation marks omitted). See generally Strickland v.
Washington, 466 U.S. 668, 687 (1984) (setting forth standard). Counsel did not identify
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any instance of ineffective assistance and none conclusively appears on the record,
therefore we decline to address the claim in this appeal.
Blackburn’s counsel suggests that we review whether the district court properly
denied the motion to suppress and whether there was prosecutorial misconduct related to
video footage of the traffic stop admitted at the suppression hearing. When considering
the denial of a motion to suppress, we review the district court’s legal conclusions de
novo and its factual findings for clear error. United States v. Giddins, 858 F.3d 870, 878-
79 (4th Cir. 2017). This court construes the evidence presented in the light most
favorable to the prevailing party, in this case, the Government. United States v. Stover,
808 F.3d 991, 994 (4th Cir. 2015). We have reviewed the record on appeal, including the
district court’s reasoning and decision denying the motion, and conclude that the court
did not err in denying the motion to suppress and there was no prosecutorial misconduct
evident in the record.
Counsel questions whether Blackburn’s 50-month upward variance sentence is
reasonable. We review the reasonableness of Blackburn’s sentence “under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). We assess
a sentence’s substantive reasonableness under “the totality of the circumstances.” Id. at
51. Although an above-Guidelines-range sentence carries no presumption of
reasonableness on appeal, “a sentence outside the Guidelines carries no presumption of
unreasonableness.” Irizarry v. United States, 553 U.S. 708, 714 (2008). “[W]here the
district court decides that a sentence outside the Guidelines’ advisory range is
appropriate, it must consider the extent of the deviation and ensure that the justification is
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sufficiently compelling to support the degree of the variance.” United States v. Zuk, 874
F.3d 398, 409 (4th Cir. 2017) (brackets, citation, and internal quotation marks omitted).
“[A] major departure should be supported by a more significant justification than a minor
one.” Gall, 552 U.S. at 50. “While a district court’s explanation for the sentence must
support the degree of the variance, it need not find extraordinary circumstances to justify
a deviation from the Guidelines.” United States v. Spencer, 848 F.3d 324, 327 (4th Cir.
2017) (internal quotation marks and citation omitted).
Here, the district court properly determined the advisory Guidelines range. The
court considered Blackburn’s arguments in mitigation. The court varied upward to 50
months based on the lack of deterrence from an earlier 60-month sentence, that
Blackburn committed the offense while on supervised release for a similar offense, his
extensive criminal record demonstrating a pattern of continued criminal activity, and that
at least one felony conviction was not counted because of age. The court properly
explained its sentence to the degree necessary to justify the deviation from the
Guidelines, including acknowledgement of the degree of the variance and need to
adequately deter Blackburn and protect the public from future crimes. See United States
v. Hargrove, 701 F.3d 156, 163-64 (4th Cir. 2012) (affirming variance from 0-to-6-month
Guidelines range to 60-month sentence, ten times the top of the Guidelines range); United
States v. Diosdado-Star, 630 F.3d 359, 362, 366-67 (4th Cir. 2011) (affirming variance
sentence six years greater than Guidelines range because sentence was based on district
court’s examination of relevant § 3553(a) factors).
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In accordance with Anders, we have reviewed the record in this case and have
found no meritorious grounds for appeal. We reviewed Blackburn’s pro se supplemental
brief primarily challenging the district court’s credibility determination at the suppression
hearing and the hearing’s outcome, and find no reversible error related to his arguments.
We therefore affirm the district court’s judgment. This court requires that counsel inform
Blackburn, in writing, of the right to petition the Supreme Court of the United States for
further review. If Blackburn 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 Blackburn. 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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