UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4037
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY LEE MILLER,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:10-cr-00028-IMK-1)
Submitted: October 28, 2011 Decided: November 16, 2011
Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stephen D. Herndon, Wheeling, West Virginia, for Appellant.
William J. Ihlenfeld, II, United States Attorney, Brandon S.
Flower, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony Lee Miller appeals his conviction, following a
jury trial, of possessing a prohibited object while
incarcerated, in violation of 18 U.S.C. § 1791(a)(2) (2006), and
the resulting thirty-month sentence. Counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
certifying that there are no meritorious issues for appeal but
asking this Court to review whether the district court had
jurisdiction over Miller. In his pro se supplemental brief,
Miller argues that the district court lacked jurisdiction, that
he received ineffective assistance of counsel, and that the
district court committed sentencing errors. The Government
filed a responsive brief.
“‘Subject-matter jurisdiction in every federal
criminal prosecution comes from 18 U.S.C. § 3231 and there can
be no doubt that Article III permits Congress to assign federal
criminal prosecutions to federal courts.’” United States v.
Hartwell, 448 F.3d 707, 716 (4th Cir. 2006) (quoting Hugi v.
United States, 164 F.3d 378, 380 (7th Cir. 1999). In a federal
criminal prosecution, “[p]ersonal jurisdiction is supplied by
the fact that [the defendant] is within the territory of the
United States.” United States v. Burke, 425 F.3d 400, 408
(7th Cir. 2005). Here, Miller was incarcerated in a United
States penitentiary and charged with violating a law of the
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United States, 18 U.S.C. § 1791. Thus, the district court had
personal and subject matter jurisdiction over Miller’s
prosecution.
Next, Miller argues that trial counsel’s
representation was constitutionally deficient because he failed
to contest the district court’s jurisdiction. Miller’s
appellate counsel addressed multiple grounds on which trial
counsel might have rendered ineffective assistance.
To establish ineffective assistance of counsel, Miller
must show that counsel’s performance fell below an objective
standard of reasonableness, and that counsel’s deficient
performance resulted in prejudice to Miller. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). Claims of ineffective
assistance of counsel are generally not cognizable on direct
appeal, unless counsel’s “ineffectiveness conclusively appears
from the record.” United States v. Baldovinos, 434 F.3d 233,
239 (4th Cir. 2006). Trial counsel’s ineffectiveness does not
conclusively appear on this record. Accordingly, Miller must
bring his claims under 28 U.S.C.A. § 2255 (West Supp. 2011) in
order to allow for adequate development of the record. See
United States v. Baptiste, 596 F.3d 214, 216-17 n.1 (4th
Cir. 2010).
Turning to Miller’s sentence, we review the imposed
sentence for reasonableness, applying an abuse-of-discretion
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standard. Gall v. United States, 552 U.S. 38, 51 (2007); United
States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010). This
review requires consideration of both the procedural and
substantive reasonableness of the sentence. Gall, 552 U.S. at
51. In determining procedural reasonableness, this Court
considers whether the district court properly calculated the
defendant’s advisory Guidelines range, considered the 18 U.S.C.
§ 3553(a) factors, analyzed any arguments presented by the
parties, and sufficiently explained the selected sentence.
Gall, 552 U.S. at 51. A sentence is reviewed for substantive
reasonableness by examining the “totality of the circumstances.”
Id.; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
We presume that a sentence within a properly determined advisory
Guidelines range is substantively reasonable. United States v.
Allen, 491 F.3d 178, 193 (4th Cir. 2007).
In his pro se supplemental brief, Miller argues that
the district court committed plain error in assigning three
criminal history points for a 1992 Florida conviction because he
was not represented by counsel and did not waive his right to
counsel.
Generally, a defendant may not collaterally attack
prior convictions used to enhance his sentence. United
States v. Bacon, 94 F.3d 158, 162 (4th Cir. 1996). However, in
Custis v. United States, 511 U.S. 485 (1994), the Supreme Court
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held that convictions obtained in violation of the right to
counsel fell outside the general rule. Id. at 487. The
defendant bears the burden of proof on such claim, because “even
when a collateral attack on a final conviction rests on
constitutional grounds, the presumption of regularity that
attaches to final judgments makes it appropriate to assign a
proof burden to the defendant.” Parke v. Raley, 506 U.S. 20, 31
(1992); see also United States v. Reyes-Solano, 543 F.3d 474,
478 (8th Cir. 2008). Miller’s conclusory allegation that his
1992 Florida conviction was obtained in violation of his right
to counsel is insufficient to carry this burden.
Miller also argues that counsel and the district court
prevented him from objecting to the presentence report (“PSR”).
This contention is contradicted by the record. Miller’s
objections were not related to the PSR and, in any event, the
district court gave Miller ample opportunity to voice his
objections during his allocution.
In accordance with Anders, we have reviewed the entire
record in this case and have found no other meritorious issues.
Accordingly, we affirm Miller’s conviction and sentence. We
deny Miller’s motion for transcripts of the pretrial proceedings
at government expense. This Court requires that counsel inform
Miller, in writing, of the right to petition the Supreme Court
of the United States for further review. If Miller requests
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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 Miller.
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
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