UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4107
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHAD STEVEN HUMPHRIES,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00087-MR-1)
Submitted: November 16, 2011 Decided: November 28, 2011
Before MOTZ, KING, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph Marshall Lee, 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Unpublished opinions are not binding precedent in this circuit.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:
In December 2009, Chad Steven Humphries pled guilty to
conspiracy to commit mail fraud, in violation of 18 U.S.C.
§ 1349 (2006), six counts of mail fraud and aiding and abetting,
in violation of 18 U.S.C. §§ 1341, 2 (2006), and six counts of
wire fraud and aiding and abetting, in violation of 18 U.S.C.
§§ 1343, 2 (2006). At sentencing, the district court granted
the Government’s motion for an upward variance and sentenced
Humphries to 180 months of imprisonment. Humphries now appeals
the criminal judgment.
Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), certifying that there are no
meritorious grounds for appeal. Despite being advised of his
right to do so, Humphries has not filed a pro se supplemental
brief. For the reasons discussed below, we affirm.
In the Anders brief, counsel questions whether trial
counsel provided ineffective assistance at sentencing. Claims
of ineffective assistance of counsel are not cognizable on
direct appeal unless the record conclusively establishes that
counsel provided ineffective assistance. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). We conclude that
any ineffective assistance of counsel claims are not ripe for
review at this time as there is no evidence in the record that
trial counsel was ineffective.
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In conducting our Anders review, we have considered
the reasonableness of the district court’s upward variance.
This court reviews a sentence imposed by a district court for
reasonableness, applying a deferential abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 46, 51 (2007).
This court first examines the sentence for “significant
procedural error,” including improper calculation of the
Guidelines range, insufficient consideration of the 18 U.S.C.
§ 3553(a) (2006) factors, and inadequate explanation of the
sentence imposed. Gall, 552 U.S. at 51; United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009). This court also must
ensure that the district court analyzed any nonfrivolous
arguments presented by the parties, sufficiently explained its
reasons for rejecting those arguments, and made “an
individualized assessment based on the facts presented.” Gall,
552 U.S. at 49-50; Carter, 564 F.3d at 328. Because Humphries
argued for a sentence different from the one imposed, he
properly preserved a claim of procedural sentencing error, and
The Government has not sought to enforce the appeal waiver
in this case, which would have precluded review of Humphries’
sentence, and we will not raise the issue sua sponte. See
United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005)
(citing United States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir.
2000)); see also United States v. Poindexter, 492 F.3d 263, 271
(4th Cir. 2007) (stating that, if Anders brief is filed in case
with appeal waiver, Government’s failure to respond “allow[s]
this court to perform the required Anders review”).
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we will reverse an abuse of discretion unless we conclude the
error was harmless. See United States v. Lynn, 592 F.3d 572,
576, 578 (4th Cir. 2010).
If this court finds a sentence procedurally
reasonable, it also must examine the substantive reasonableness
of the sentence under the totality of the circumstances. Gall,
552 U.S. at 51; see Carter, 564 F.3d at 328. In the case of an
above-Guidelines sentence, a reasonableness analysis will take
into account “whether the sentencing court acted reasonably both
with respect to its decision to impose such a sentence and with
respect to the extent of the divergence from the sentencing
range.” United States v. Hernandez-Villanueva, 473 F.3d 118,
123 (4th Cir. 2007). However, this consideration also “must
give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the
variance.” Gall, 552 U.S. at 51.
It is apparent from the record that the district court
considered both parties’ arguments and had a reasoned basis for
its variance from the Guidelines range. The district court
properly considered the § 3553(a) factors and explained that it
was varying from the Guidelines range because a within-
Guidelines sentence would not adequately account for the
seriousness of Humphries’ offense and criminal history, nor
provide sufficient deterrence or just punishment for his crime.
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The court also specifically addressed defense counsel’s argument
for a within-Guidelines sentence and explained why it was not
adopting counsel’s request. Under the circumstances, we are
satisfied that the district court rendered an individualized
assessment in this case and adequately explained the upward
variance and conclude that the sentence is procedurally sound.
Additionally, we cannot conclude that the district court abused
its discretion in imposing a thirty-month upward variance, and
we hold that the sentence is substantively reasonable in light
of the facts of this case and the district court’s reasoned
analysis of the relevant § 3553(a) factors.
In accordance with Anders, we have thoroughly reviewed
the record, including the transcript of the Fed. R. Crim. P. 11
hearing, and find no meritorious issues for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for
further review. If the client 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 the client. We dispense with oral
argument because the facts and legal contentions are adequately
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expressed in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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