UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4899
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANGEL FERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00131-RJC-1)
Submitted: October 30, 2012 Decided: November 8, 2012
Before WILKINSON and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
D. Baker McIntyre III, 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Unpublished opinions are not binding precedent in this circuit.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:
Angel Fernandez appeals his conviction and the 140-
month sentence imposed by the district court following his
guilty plea to conspiracy to distribute and to possess with
intent to distribute black tar heroin, in violation of 21 U.S.C.
§ 846 (2006), and using and carrying a firearm during and in
relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c) (2006). Fernandez’s counsel has 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 the sentence imposed was unreasonable and
whether Fernandez was denied effective assistance of counsel in
the district court. Fernandez was advised of his right to file
a pro se supplemental brief but he did not file one.
We review a sentence under a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). The first step in this review requires the court to
ensure the district court committed no significant procedural
error, such as improperly calculating the Sentencing Guidelines
range, failing to consider the 18 U.S.C. § 3553(a) (2006)
factors, or failing to adequately explain the sentence. United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). If the
sentence is procedurally reasonable, we consider the substantive
reasonableness of the sentence, taking into account the totality
2
of the circumstances. Gall, 552 U.S. at 51. A sentence within
or below a properly calculated Guidelines range is accorded an
appellate presumption of reasonableness. United States v. Susi,
674 F.3d 278, 289 (4th Cir. 2012). We have reviewed the record
and conclude that Fernandez’s below-Guidelines sentence is both
procedurally and substantively reasonable.
Turning to Fernandez’s contention that his counsel was
ineffective, such claims are not cognizable on direct appeal
unless the record conclusively establishes that counsel provided
ineffective assistance. United States v. Benton, 523 F.3d 424,
435 (4th Cir 2008). To allow for adequate development of the
record, a defendant ordinarily should bring an ineffective
assistance claim in a 28 U.S.C.A. § 2255 (West Supp. 2012)
motion. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th
Cir. 2010). Because we conclude that the record on appeal does
not conclusively establish that Fernandez’s counsel was
ineffective, we decline to consider this issue on direct appeal.
In accordance with Anders, we have reviewed the record
and have found no meritorious issues for appeal. We therefore
affirm Fernandez’s convictions and sentence. This court
requires that counsel inform Fernandez, in writing, of his right
to petition the Supreme Court of the United States for further
review. If Fernandez requests that a petition be filed, but
counsel believes that such a petition would be frivolous,
3
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Fernandez. 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
4