UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4111
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ADRIAN LAMONT KEARNEY, a/k/a Adrian Carlton White, a/k/a
A.D.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. W. Earl Britt,
Senior District Judge. (4:10-cr-00041-BR-1)
Submitted: September 11, 2012 Decided: September 26, 2012
Before DAVIS, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Jude Darrow, LAW OFFICE OF MARY JUDE DARROW, Raleigh, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Adrian Lamont Kearney appeals his convictions of
distributing at least five grams of cocaine base and possessing
with intent to distribute at least fifty grams of cocaine base,
in violation of 21 U.S.C. § 841 (2006), and his eighty-four
month sentence. Counsel for Kearney has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), asserting that
there are no meritorious issues on appeal but questioning
whether Kearney’s Guidelines range was correctly calculated and
whether trial counsel was ineffective. Kearney was notified of
his right to file a pro se supplemental brief but has not done
so. The Government has declined to file a brief. We affirm.
Because Kearney did not move to withdraw his guilty
plea, the Fed. R. Crim. P. 11 plea colloquy is reviewed for
plain error. United States v. Martinez, 277 F.3d 517 (4th Cir.
2002). After a complete review of the record pursuant to
Anders, we conclude that the district court substantially
complied with Fed. R. Crim. P. 11 and thus did not plainly err
in accepting Kearney’s plea. We therefore affirm Kearney’s
convictions.
We review Kearney’s sentence for reasonableness,
applying the abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). This requires consideration of
both the procedural and substantive reasonableness of the
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sentence. Id.; United States v. Lynn, 592 F.3d 572, 575 (4th
Cir. 2010). After determining whether the district court
correctly calculated the advisory Guidelines range, we must
determine whether the court considered the 18 U.S.C. § 3553(a)
(2006) factors, analyzed the arguments presented by the parties,
and sufficiently explained the selected sentence. Lynn, 592
F.3d at 575-76; United States v. Carter, 564 F.3d 325, 330 (4th
Cir. 2009). If the sentence is free of significant procedural
error, we review the substantive reasonableness of the sentence.
Lynn, 592 F.3d at 575; United States v. Pauley, 511 F.3d 468,
473 (4th Cir. 2007).
We first conclude that Kearney’s sentence is
procedurally reasonable. Kearney received a two-level
enhancement in his offense level for obstruction of justice
under U.S. Sentencing Guidelines Manual § 3C1.1 (2010). That
provision describes that when a defendant willfully obstructed
or impeded the administration of justice “with respect to the
investigation,” his offense level shall be increased by two
levels. This provision applies when a defendant destroys
evidence during an arrest if that destruction amounts to a
material hindrance. USSG § 3C1.1 cmt. n.4. The threshold for
“materiality” under the Guidelines is low. United States v.
Gormley, 201 F.3d 290, 984 (4th Cir. 2000). Because Kearney did
not object to the enhancement at sentencing, his claim is
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reviewed for plain error. Lynn, 592 F.3d at 576-77. We
conclude that the district court did not plainly err in imposing
the obstruction enhancement. We further conclude that the
district court’s calculation of Kearney’s criminal history
category was likewise not plain error. Additionally, Kearney’s
within-Guidelines sentence is substantively reasonable. United
States v. Powell, 650 F.3d 388, 395 (4th Cir.), cert. denied,
132 S. Ct. 350 (2011) (this court presumes that a sentence
within a properly-calculated Guidelines range is reasonable).
We thus affirm Kearney’s sentence.
To the extent Kearney seeks to raise the issue of
ineffective assistance of counsel, he has not conclusively
demonstrated such ineffectiveness. The claim is thus not
cognizable on direct appeal. United States v. Baldovinos, 434
F.3d 233, 239 (4th Cir. 2006); see also United States v. King,
119 F.3d 290, 295 (4th Cir. 1997) (“[I]t is well settled that a
claim of ineffective assistance should be raised in a 28 U.S.C.
§ 2255 motion in the district court rather than on direct
appeal, unless the record conclusively shows ineffective
assistance.”) (internal quotation marks omitted).
Accordingly, we affirm. In accordance with Anders, we
have reviewed the entire record in this case and have found no
meritorious issues for appeal. We therefore affirm Kearney’s
convictions and sentence. This court requires that counsel
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inform Kearney, in writing, of the right to petition the Supreme
Court of the United States for further review. If Kearney
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 Kearney.
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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