UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5053
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRED ALASHAWN FRASIER, a/k/a Fred A. Frazier, a/k/a Fred
Lashon Frasier, a/k/a Fred Lashan Frasier, a/k/a Fred Lashan
Frazier,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00593-PMD-1)
Submitted: June 1, 2012 Decided: June 11, 2012
Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Timothy W. Murphy, KOLB & MURPHY, Sumter, South Carolina, for
Appellant. Sean Kittrell, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fred Alashawn Frasier appeals his jury conviction and
120-month sentence for one count of possession of a firearm by a
felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006).
Counsel has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), indicating that Frasier wishes
to challenge the district court’s denial of his Fed. R. Crim. P.
29 motion, the reasonableness of his sentence, and whether his
trial counsel was ineffective. Frasier has filed a pro se
supplemental brief raising the issues identified by counsel, and
the Government declined to file a responsive brief. Finding no
error, we affirm.
We review the district court’s denial of Frasier’s
Rule 29 motion de novo. See United States v. Alerre, 430 F.3d
681, 693 (4th Cir. 2005). When a Rule 29 motion is based on a
claim of insufficient evidence, the jury’s verdict must be
sustained “if there is substantial evidence, taking the view
most favorable to the Government, to support it.” United States
v. Abu Ali, 528 F.3d 210, 244 (4th Cir. 2008) (internal
quotation marks and citations omitted). Substantial evidence is
“evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.” United States v. King, 628
F.3d 693, 700 (4th Cir. 2011) (internal quotation marks
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omitted). We have reviewed the record of the district court
proceedings and conclude that it was reasonable for the jury to
accept the Government’s evidence as adequate and sufficient to
find Frasier guilty of the offense with which he was charged
beyond a reasonable doubt.
We also discern no error in Frasier’s 120-month
sentence. After United States v. Booker, 543 U.S. 220 (2005),
we review a sentence for reasonableness. Gall v. United States,
552 U.S. 38, 51 (2007). The first step in this review requires
us to ensure that the district court committed no significant
procedural error. United States v. Evans, 526 F.3d 155, 161
(4th Cir. 2008). Procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
[18 U.S.C. § 3553(a) (2006)] factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the
chosen sentence—including an explanation for any deviation from
the Guidelines range.” Gall, 552 U.S. at 51.
Only if this Court finds the sentence procedurally
reasonable can it consider the substantive reasonableness of the
sentence imposed. United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009). We presume on appeal that a sentence within
the Guidelines range is reasonable. See United States v. Allen,
491 F.3d 178, 193 (4th Cir. 2007).
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A review of Frasier’s presentence investigation report
establishes that he was properly placed in criminal history
category VI and that the district court correctly attributed to
him a total offense level of thirty, yielding a Guidelines range
of 168 to 210 months. Because of the statutory maximum
applicable to Frasier’s conviction, his final Guidelines range
is 120 months. See 18 U.S.C. § 924(a)(2); U.S. Sentencing
Guidelines Manual (“USSG”) §§ 2K2.1(a)(2), 3A1.2(c)(1),
5G1.1(a), ch.5, pt. A (2010). Frasier nonetheless asserts that
the district court should not have increased his offense level
six levels, pursuant to USSG § 3A1.2(c)(1) (2010).
This Court reviews for clear error the district
court’s factual findings underlying the application of an
enhancement. United States v. Carter, 601 F.3d 252, 254 (4th
Cir. 2010). Pursuant to USSG § 3A1.2(c)(1), a defendant
qualifies for a six-level enhancement if, knowing or having
reasonable cause to believe that a person is a law enforcement
officer, he assaults the officer in a manner creating a
substantial risk of serious bodily injury during the course of
an offense or during immediate flight from the offense. USSG
§ 3A1.2(c)(1). Under the Guidelines, such conduct is tantamount
to aggravated assault, USSG § 3A1.2 cmt. n.4(A), which is
defined as “a felonious assault that involved (A) a dangerous
weapon with intent to cause bodily injury (i.e., not merely to
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frighten) with that weapon; (B) serious bodily injury; or (C) an
intent to commit another felony.” USSG § 2A2.2 cmt. n.1. In
determining whether an assault was committed, this Court looks
to the common meaning of assault, as well as its common law
meaning. United States v. Hampton, 628 F.3d 654, 660 (4th Cir.
2010). Battery of a law enforcement officer satisfies USSG
§ 3A1.2(c)(1)’s assault requirement. Id. at 661. We conclude
that, given the officers’ testimony that Frasier violently
struggled to escape apprehension, and subsequently reached for a
weapon that the officers rightfully believed was operable, the
district court did not err when it applied the six-level
enhancement to Frasier’s offense level.
We reject on this appeal Frasier’s assertion that his
trial counsel was ineffective. An ineffective assistance of
counsel claim should generally be raised in a habeas corpus
motion under 28 U.S.C.A. § 2255 (West Supp. 2011) in the
district court. See United States v. Richardson, 195 F.3d 192,
198 (4th Cir. 1999). Although an ineffective assistance claim
may be cognizable on direct appeal if “it conclusively appears
from the record that defense counsel did not provide effective
representation,” id. (internal quotation marks and citation
omitted), it does not conclusively appear on the record that
counsel provided ineffective representation. Accordingly, an
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ineffective assistance of counsel claim is not cognizable on
this appeal.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This Court
requires that counsel inform Frasier, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Frasier 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 Frasier. 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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