UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4069
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PATRICK GRANT DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Frank D. Whitney,
District Judge. (5:02-cr-00026-FDW-CH-1)
Submitted: September 23, 2011 Decided: September 29, 2011
Before TRAXLER, Chief Judge, WILKINSON, Circuit Judge, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Noell P. Tin, TIN, FULTON, WALKER & OWEN, PLLC, Charlotte, North
Carolina, for Appellant. David Alan Brown, Sr., Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This is the third time this court has reviewed Patrick
Grant Davis’ sentence for failure to file tax returns and
conspiracy to defraud the United States. Davis was initially
indicted in May 2002, and charged with three counts of failing
to file tax returns for tax years 1995-1997, in violation of 26
U.S.C. § 7203 (2006). In December 2002, the Government sought a
superseding indictment, charging Davis and his co-defendant,
Martin Louis Baucom, with conspiracy to defraud the United
States, in violation of 18 U.S.C. § 371 (2006). Baucom and
Davis represented themselves at trial, after which the jury
found them guilty on all counts. The district court initially
varied downward to sentence Davis to four years’ probation.
Davis appealed his convictions and the Government
cross-appealed the sentence. After hearing oral argument, this
court affirmed Davis’ convictions, but vacated his sentence and
remanded for resentencing. See United States v. Baucom, 486
F.3d 822, 831 (4th Cir. 2007) (“Baucom I”). This court reversed
the district court’s finding that Davis was eligible for a two-
level reduction for acceptance of responsibility and further
reversed the district court’s holding with regard to the
admissibility of evidence as to the tax loss incurred by the
State of North Carolina. Id. at 829-30. The Supreme Court
subsequently granted Davis’ petition for a writ of certiorari
2
and remanded this case to this court for further consideration
in light of United States v. Gall, 552 U.S. 38 (2007). See
Davis v. United States, 552 U.S. 1092 (2008). This court, in
turn, remanded the case to the district court.
At resentencing, the district court again imposed a
probationary sentence, coupled with house arrest. The
Government appealed, and we again vacated the judgment and
remanded for resentencing. See United States v. Baucom, 360 F.
App’x 457 (4th Cir. 2010) (unpublished) (“Baucom II”). We
directed that the case be reassigned to a different district
court judge. Baucom II, 360 F. App’x at 459 n.1. The Supreme
Court subsequently denied Davis’ petition for a writ of
certiorari. See Davis v. United States, 130 S. Ct. 3340 (2010).
On remand, the district court sentenced Davis to thirty-four
months’ imprisonment. This appeal timely followed.
Davis’ attorney, Noell Tin, has filed this appeal
pursuant to Anders v. California, 386 U.S. 738 (1967),
representing that there are no non-frivolous issues for appeal,
but asking us to review whether his performance at sentencing
was constitutionally deficient. Davis similarly raises an
ineffective assistance of counsel claim in his pro se
supplemental brief. The Government has declined to file a
response brief. For the reasons that follow, we affirm.
3
Claims of ineffective assistance of counsel are not
cognizable on direct appeal unless the record conclusively
establishes ineffective assistance. See United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006); United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Rather, to allow
for adequate development of the record, claims of ineffective
assistance generally should be brought in a 28 U.S.C.A. § 2255
(West Supp. 2011) motion. United States v. Hoyle, 33 F.3d 415,
418 (4th Cir. 1994). We have reviewed the transcript of Davis’
resentencing hearing and conclude that Davis has failed to meet
the demanding burden of showing ineffective assistance of
counsel on direct appeal. Accordingly, we reject this claim.
In accordance with Anders, we have reviewed the record
in this case and found no meritorious issues for appeal. We
therefore affirm Davis’ sentence. 1 This court requires that
counsel inform Davis, in writing, of the right to petition the
Supreme Court of the United States for further review. If Davis
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in
1
Although not challenged by counsel or Davis, because this
case is before us pursuant to Anders, we have reviewed the
within-Guidelines sentence Davis received and conclude that it
was both procedurally and substantively reasonable. See Gall,
552 U.S. at 51; United States v. Diosdado-Star, 630 F.3d 359,
363 (4th Cir.), cert. denied, 131 S. Ct. 2946 (2011).
4
this court for leave to withdraw from representation. 2 Counsel’s
motion must state that a copy thereof was served on Davis. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
2
At this time, we deny the pending motion to relieve Tin as
Davis’ appellate attorney and for the substitution of counsel.
5