United States v. Spain

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-4133

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

HARRY A. SPAIN,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (CR-03-10025)

Submitted: May 19, 2006 Decided: June 7, 2006

Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Marc Seguinot, THE HELEIN LAW GROUP, P.C., McLean, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Anthony P.
Giorno, Assistant United States Attorney, Roanoke, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Harry A. Spain appeals his conviction of three counts of

possessing contraband in prison, in violation of 18 U.S.C.

§ 1791(a)(b) (2000), and the resulting sixty-month sentence on each

count, to run concurrent with each other and consecutive to any

previous sentence. Spain’s attorney has filed a brief in

accordance with Anders v. California, 386 U.S. 738 (1967),

certifying that there are no meritorious issues for appeal, but

raising two claims: (1) the district court erred at sentencing in

considering several prior arrests that did not result in

convictions; and (2) defense counsel rendered ineffective

assistance at trial. Spain, informed of his right to file a pro se

supplemental brief, has not done so. We affirm.

After Booker, courts must calculate the appropriate

guideline range, consider the range in conjunction with other

relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2005), and impose a sentence. The sentence must

be “within the statutorily prescribed range and . . . reasonable.”

United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005)

(citations omitted). If the district court concludes that a

sentence within the sentencing range does not adequately reflect

the § 3553(a) factors, it may impose a sentence outside the

sentencing range, upon explaining why a sentence outside the range

better serves statutory goals. United States v. Eura, 440 F.3d

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625, 632 (4th Cir. 2006). “[I]n reviewing a variance sentence,

this court must consider--in light of the factors enumerated in

§ 3553(a) and any relevant guideline provisions--whether the

district court acted reasonably with respect to (1) the imposition

of a variance sentence, and (2) the extent of the variance.”

United States v. Moreland, 437 F.3d 424, 433-34 (4th Cir.), cert.

denied, __ U.S.L.W. __, 2006 WL 1022030 (U.S. May 15, 2006) (No.

05-10393). “Generally, if the reasons justifying [a] variance are

tied to § 3553(a) and are plausible, the sentence will be deemed

reasonable.” Id. at 434.

Here, the district court properly calculated the

guideline range. The court then concluded that a sentence within

that range would not sufficiently reflect the § 3553(a) factors.

In imposing the variance, the court reviewed “the nature and

circumstances of the offense.” 18 U.S.C. § 3553(a)(1). The court

also observed that the variance was intended to “reflect the

seriousness of the offense” and “promote respect for the law,”

§ 3553(a)(2)(A), to deter other inmates from similar behavior,

§ 3553(a)(2)(B), and to protect staff and inmates from illegal

weapons within the prison, § 3553(a)(2)(C). We conclude that the

district court acted reasonably in imposing this variance sentence.

As to the specific issues raised by Spain, first, there

is no suggestion in the record that the district court relied on

the charges, noted in the presentence report, that did not result

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in convictions. Therefore, we conclude that this claim lacks

merit. Spain also alleges that trial counsel rendered

constitutionally ineffective assistance. “Ineffective assistance

claims are not cognizable on direct appeal unless counsel’s

ineffectiveness conclusively appears on the record.” United States

v. James, 337 F.3d 387, 391 (4th Cir. 2003). Instead, to allow for

adequate development of the record, a defendant generally must

bring his ineffective assistance claims in a motion under 28 U.S.C.

§ 2255 (2000). United States v. King, 119 F.3d 290, 295 (4th Cir.

1997). Because the record does not conclusively show that counsel

was ineffective, we will not review this claim.

In accordance with Anders, we have reviewed the entire

record for any meritorious issues and have found none.

Accordingly, we affirm. This court requires that counsel inform

his client, in writing, of his right to petition the Supreme Court

of the United States for further review. If the client 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 the client. 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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