UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4561
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEORGE CARTER,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:05-cr-00068-JPB-DJJ-5)
Submitted: February 28, 2012 Decided: March 2, 2012
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Martin P. Sheehan, SHEEHAN & NUGENT, P.L.L.C., Wheeling, West
Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Paul T. Camilletti, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George Carter appeals an order revoking supervised
release and the resulting twenty-four-month sentence imposed by
the district court. On appeal, counsel filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), asserting that, in
his opinion, there are no meritorious issues for appeal, but
questioning whether: (1) Carter can challenge the
reasonableness of his original sentence as part of this appeal;
(2) Carter can challenge the twenty-four-month supervised
release sentence on the ground that when it is coupled with his
original sentence of fifty-seven months in prison it exceeds the
sixty-month statutory maximum for his 18 U.S.C. § 371 (2006)
offense; (3) Carter is entitled to relief based on the district
court’s failure to advise him during the Fed. R. Crim. P. 11
colloquy that he could ultimately be required to serve more than
sixty months in prison if he violated the conditions of his
supervised release; (4) Carter was denied access to conflict-
free counsel during the original and revocation proceedings; and
(5) the district court abused its discretion in sentencing
Carter to twenty-four months’ imprisonment. The Government
filed a responsive brief, arguing that Carter is not entitled to
relief on any of the grounds alleged. Carter has filed three
pro se supplemental briefs, arguing that his original conviction
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is invalid and that the district court erred in denying him bond
before his revocation sentencing.
First, we conclude that Carter cannot attack the
reasonableness of his original sentence in this appeal. Under
the law of the case doctrine, once an appellate court “decides
upon a rule of law, that decision should continue to govern the
same issues in subsequent stages in the same case.” United
States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (internal
quotation marks omitted). Because we expressly found on direct
appeal that Carter’s sentence was reasonable and that the
district court complied with Rule 11 requirements, Carter’s
attempt to relitigate his original sentence is not reviewable in
this appeal. United States v. Carter, 237 F. App’x 888 (4th
Cir. 2007) (No. 06-4831); see also United States v. Warren, 335
F.3d 76, 78 (2d Cir. 2003) (collecting cases holding that
validity of underlying conviction may not be attacked in
supervised release revocation proceeding).
Next, we conclude that Carter’s revocation sentence
cannot be attacked on the ground that when it is coupled with
his original fifty-seven-month sentence the appropriate period
of incarceration he must serve exceeds the sixty-month maximum
authorized for his original count of conviction, 18 U.S.C.
§ 371. The district court had authority, however, to impose a
sixty-month term of imprisonment under 18 U.S.C. § 371, plus a
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three-year term of supervised release that included the
possibility of additional imprisonment of up to two years if
Carter violated the conditions of his supervised release. 18
U.S.C. § 3583(b)(2), (e)(3) (2006); United States v. McIntosh,
630 F.3d 699, 702 (7th Cir.), cert. denied, 131 S. Ct. 2128
(2011). Accordingly, Carter is not entitled to relief on this
ground.
We find unreviewable Carter’s claim that he was denied
access to conflict-free counsel during the original criminal
proceedings. As previously noted, Carter cannot challenge the
validity of his underlying conviction in this proceeding.
Warren, 335 F.3d at 78-79. We likewise decline to review on
direct appeal Carter’s claim that he received ineffective
assistance during the revocation proceeding. Ineffective
assistance of counsel claims are not reviewable on direct appeal
unless counsel’s deficient performance is conclusively
established by the record; rather, such claims should be raised
under 28 U.S.C.A. § 2255 (West Supp. 2011). United States v.
Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
We also conclude that the claims raised in Carter’s
pro se supplemental briefs are without merit.
We next review Carter’s revocation sentence under a
plainly unreasonable standard of review. United States v.
Crudup, 461 F.3d 433, 437 (4th Cir. 2006). In determining
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whether a sentence is plainly unreasonable, we must first
consider whether the sentence imposed is unreasonable, following
“the procedural and substantive considerations that we employ in
our review of original sentences.” Id. Only if we find the
sentence procedurally or substantively unreasonable must we
decide whether it is “plainly” so. United States v. Moulden,
478 F.3d 652, 657 (4th Cir. 2007). A sentence is plainly
unreasonable if it runs afoul of clearly settled law. United
States v. Thompson, 595 F.3d 544, 548 (4th Cir. 2010).
Under the procedural considerations applicable to
revocation sentences, it is clearly settled that a district
court must sufficiently explain the reasons for the chosen
sentence so that this court may effectively review it. Moulden,
478 F.3d at 657. “This requirement applies regardless of
whether the district court imposes an above, below, or within-
Guidelines sentence.” Thompson, 595 F.3d at 547 (internal
quotation marks and alteration omitted).
To preserve a claim of procedural sentencing error for
plainly unreasonable appellate review, “a defendant need only
ask for a sentence outside the range calculated by the court
prior to sentencing.” Id. at 546. If a district court commits
a procedural sentencing error that is plainly unreasonable,
i.e., plainly in contravention of circuit authority, we will
grant relief unless we can conclude that the error was harmless.
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Id. at 548. The party defending the ruling below bears the
burden of showing that the error was harmless. United States v.
Lynn, 592 F.3d 572, 585 (4th Cir. 2010).
Having conducted an Anders review of Carter’s
sentence, we concluded that the district court did not
adequately explain its reasons for imposing the twenty-four-
month revocation sentence, and that Carter preserved this claim
for appellate review. We requested supplemental briefing from
the parties on whether the district court’s failure to explain
its reasons for the twenty-four-month revocation sentence was
harmless error. Carter’s counsel filed a supplemental brief,
arguing that the error was not harmless. The Government,
conceding the error and making no effort to show that the error
is harmless, filed a motion to remand for resentencing.
We cannot assume that the district court’s sentence
would not be affected by its explicit consideration of Carter’s
arguments in his and counsel’s presence and a requirement that
it explain the rationale underpinning its sentencing
determination in open court. See Lynn, 592 F.3d at 585.
Accordingly, while we affirm the district court’s revocation of
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Carter’s supervised release, we vacate the sentence and remand
for resentencing. *
In accordance with Anders, we have reviewed the entire
record in this case and found no other meritorious issues. This
court requires that counsel inform Carter in writing of his
right to petition the Supreme Court of the United States for
further review. If Carter 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 Carter.
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 IN PART,
VACATED IN PART,
AND REMANDED
*
Having found the district court’s revocation sentence to
be procedurally flawed, we have not considered its substantive
reasonableness. See United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009) (“If, and only if, we find the sentence
procedurally reasonable can we consider the substantive
reasonableness of the sentence.”). Accordingly, this
disposition should not be construed as indicating any view by
this court as to whether a twenty-four-month revocation sentence
is or is not plainly unreasonable.
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