UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4070
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
NELSON RANGEL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00081-MR-1)
Submitted: November 6, 2012 Decided: November 14, 2012
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles R. Brewer, Asheville, 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Unpublished opinions are not binding precedent in this circuit.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:
Nelson Rangel pled guilty pursuant to a plea agreement
to one count of possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (2006).
The district court sentenced Rangel to 97 months’ imprisonment.
Rangel now appeals. In accordance with Anders v. California,
386 U.S. 738 (1967), Rangel’s attorney has filed a brief
certifying that there are no meritorious issues for appeal.
Rangel has filed a pro se supplemental brief claiming that he
did not receive effective assistance of counsel and that his
sentence was unreasonable. Finding no error, we affirm.
First, we review Rangel’s sentence for reasonableness,
applying a “deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 52 (2007). We begin by reviewing
the sentence for significant procedural error, including
improper calculation of the Guidelines range, failure to
consider sentencing factors under 18 U.S.C. § 3553(a) (2006),
sentencing based on clearly erroneous facts, or failure to
adequately explain the sentence imposed. Id. at 51. Only if we
find a sentence procedurally reasonable can we consider
substantive reasonableness. United States v. Carter, 564 F.3d
325, 328 (4th Cir. 2009). Here, Rangel’s within-Guidelines
sentence is presumed reasonable, United States v. Powell, 650
F.3d 388, 395 (4th Cir.), cert. denied, 132 S. Ct. 350 (2011),
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and we find no procedural or substantive error in its
imposition.
Next we consider Rangel’s pro se claim of ineffective
assistance of counsel. Generally, such claims are not
cognizable on direct appeal unless the record conclusively
establishes counsel’s “objectively unreasonable performance” and
resulting prejudice. United States v. Benton, 523 F.3d 424, 435
(4th Cir. 2008). Instead, ineffective assistance claims are
most appropriately pursued in a motion pursuant to 28 U.S.C.A.
§ 2255 (West Supp. 2012). Because the record does not
conclusively establish counsel’s ineffectiveness, we decline to
consider Rangel’s claim on direct appeal.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
Therefore, we affirm Rangel’s conviction and sentence. This
court requires counsel to inform Rangel, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Rangel requests that a petition be filed but
counsel believes such a petition would be frivolous, counsel may
move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Rangel. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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