UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5107
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT LEE MCQUEEN, a/k/a Preacher,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:09-cr-00253-F-1)
Submitted: August 22, 2011 Decided: September 9, 2011
Before MOTZ, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
H. Gerald Beaver, BEAVER, HOLT, STERNLICHT & COURIE, P.A.,
Fayetteville, North Carolina, for Appellant. Jennifer P.
May-Parker, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM
Robert Lee McQueen was convicted by a jury of one
count of conspiracy to possess with intent to distribute more
than 100 grams of heroin, in violation of 21 U.S.C. § 846
(2006), multiple counts of possession and distribution of
heroin, in violation of 21 U.S.C. § 841(a)(1) (2006), and one
count of unlawful possession of two firearms in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A)(i) (2006). McQueen was sentenced to a total of 169
months’ imprisonment. On appeal, McQueen’s counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738, 744
(1967), stating that he found no meritorious issues for appeal,
but questioning whether the district court abused its discretion
when it excluded evidence of a Government witness’s prior felony
convictions; whether the district court erred in sentencing
McQueen; and whether McQueen received ineffective assistance of
counsel. McQueen filed a pro se supplemental brief challenging
the sufficiency of the evidence and the calculation of the drug
weight in the presentence report, and alleging a violation of
his Confrontation Clause rights. The Government has declined to
file a brief. Because we find no meritorious grounds for
appeal, we affirm.
Counsel for McQueen first questions whether the
district court erred when it excluded evidence of a Government
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witness’s prior felony convictions, in accordance with Fed. R.
Evid. 609 (a) and (b). We review a district court’s ruling on
the admissibility of evidence for an abuse of discretion.
United States v. Johnson, 587 F.3d 625, 637 (4th Cir. 2009). We
conclude that the district court did not abuse its discretion in
applying the provisions of Rule 609(a) and (b) to exclude
evidence of some, but not all, of the witness’s prior
convictions because they were more than ten years old.
McQueen also questions whether the district court
erred in imposing his sentence. Appellate review of a sentence,
“whether inside, just outside, or significantly outside the
Guidelines range,” is for abuse of discretion. Gall v. United
States, 552 U.S. 38, 41 (2007); see also United States v.
Llamas, 599 F.3d 381, 387 (4th Cir. 2010). This review requires
consideration of both the procedural and substantive
reasonableness of a sentence. Gall, 552 U.S. at 51. This court
must assess whether the district court properly calculated the
advisory Guidelines range, considered the 18 U.S.C. § 3553(a)
(2006) factors, analyzed any arguments presented by the parties,
and sufficiently explained the selected sentence. Id. at 49-50.
We presume that a sentence imposed within the properly
calculated Guidelines range is reasonable. United States v.
Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).
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We have reviewed the record with these standards in
mind. Our examination leads us to conclude that McQueen’s
within-Guidelines sentence is procedurally and substantively
sound. Therefore, the district court did not abuse its
discretion in imposing the chosen sentence.
Finally, McQueen’s claim that trial counsel rendered
ineffective assistance must be considered in a post-conviction
proceeding brought pursuant to 28 U.S.C.A. § 2255 (West Supp.
2011), unless counsel’s alleged deficiencies conclusively appear
on the record. See United States v. Benton, 523 F.3d 424, 435
(4th Cir. 2008); United States v. Baptiste, 596 F.3d 214, 216
n.1 (4th Cir. 2010). Because we find no conclusive evidence on
the record before us that counsel rendered ineffective
assistance, we decline to consider this claim on direct appeal.
In accordance with Anders, we have reviewed the entire
record in this case and McQueen’s pro se supplemental brief and
conclude there are no meritorious issues for appeal. We
therefore affirm McQueen’s conviction and sentence. We deny
counsel’s motion to withdraw. This court requires that counsel
inform McQueen, in writing, of his right to petition the Supreme
Court of the United States for further review. If McQueen
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, counsel may renew his motion
for leave to withdraw from representation. Counsel’s motion
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must state that a copy thereof was served on McQueen. We
dispense with oral argument because the facts and legal
conclusions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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