UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4047
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KASANDRA FAITH DODRILL,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:15-cr-00067-IMK-MJA-3)
Submitted: September 15, 2016 Decided: October 6, 2016
Before TRAXLER, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles T. Berry, Fairmont, West Virginia, for Appellant. Zelda
Elizabeth Wesley, Assistant United States Attorney, Clarksburg,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kasandra Faith Dodrill received a four-month sentence after
pleading guilty pursuant to a plea agreement to maintaining a
drug-involved premises, and aiding and abetting such conduct, in
violation of 21 U.S.C. § 856(a)(1) (2012) and 18 U.S.C. § 2
(2012). She appeals.
Counsel filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting that there are no legally
nonfrivolous issues, but raising for the court’s consideration
whether (1) the district court erred by not reducing Dodrill’s
offense level by two levels for acceptance of responsibility;
(2) the Government breached the plea agreement by not
recommending that Dodrill receive a two-level reduction for
acceptance of responsibility and misled Dodrill into believing
that she would get credit for acceptance of responsibility if
she voluntarily revoked her pretrial release; and (3) counsel
was ineffective for promising Dodrill that she would receive
credit for acceptance of responsibility. Dodrill was notified
of the opportunity to file a pro se supplemental brief, but did
not do so. The Government did not file a brief.
We review a sentence’s procedural and substantive
reasonableness for an abuse of discretion. United States v.
Howard, 773 F.3d 519, 527-28 (4th Cir. 2014). We first review
for procedural errors such as improper calculation of the
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Sentencing Guidelines range, failure to consider the 18 U.S.C.
§ 3553(a) (2012) sentencing factors, selection of a sentence
based on clearly erroneous facts, id. at 528, or failure to
adequately explain the sentence, Gall v. United States, 552 U.S.
38, 51 (2007). Absent any procedural error, we examine the
substantive reasonableness of the sentence under “the totality
of the circumstances.” Howard, 773 F.3d at 528 (internal
quotation marks omitted). Sentences within or below a properly
calculated Guidelines range are presumed substantively
reasonable, and this “presumption can only be rebutted by
showing that the sentence is unreasonable when measured against
the 18 U.S.C. § 3553(a) factors.” United States v. Louthian,
756 F.3d 295, 306 (4th Cir. 2014).
Because Dodrill did not raise an objection at sentencing,
we review for plain error. United States v. Sanya, 774 F.3d
812, 815 (4th Cir. 2014). To establish plain error, an
appellant must show: (1) error; (2) that was plain; and (3) that
affected her substantial rights. Henderson v. United States,
133 S. Ct. 1121, 1126-27 (2013). If all three conditions are
met, this court may exercise its discretion to notice the error,
but only if the error seriously affects the fairness, integrity,
or public reputation of the judicial proceedings. Johnson v.
United States, 520 U.S. 461, 467 (1997).
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We conclude there was no error in the district court’s
decision not to give Dodrill an adjustment for acceptance of
responsibility. See United States v. Kidd, 12 F.3d 30, 34 (4th
Cir. 1993) (concluding defendant’s continued drug use after
pleading guilty was sufficient reason to deny credit for
acceptance of responsibility). We further conclude that there
is no evidence that the Government breached the plea agreement
or failed to fulfill a promise to request that Dodrill receive
credit for acceptance of responsibility.
Finally, claims of ineffective assistance of counsel
generally are not cognizable on direct appeal unless an
attorney’s ineffectiveness conclusively appears on the face of
the record. United States v. Benton, 523 F.3d 424, 435 (4th
Cir. 2008). Instead, such claims should be raised in a motion
brought pursuant to 28 U.S.C. § 2255 (2012), in order to permit
sufficient development of the record. United States v.
Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). Because it
does not conclusively appear on the record that counsel was
ineffective for allegedly promising Dodrill that she would
receive credit for acceptance of responsibility, this claim must
be raised in a § 2255 motion. *
* We take no position on the merits of such an argument.
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Dodrill’s conviction and sentence.
This court requires that counsel inform Dodrill, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Dodrill 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 Dodrill.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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