United States v. Evans , 106 F. App'x 814 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4430
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARRYL EVANS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(CR-02-17-MJG)
Submitted: May 28, 2004 Decided: June 30, 2004
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
G. Arthur Robbins, CHESAPEAKE MERIDIAN, Annapolis, Maryland, for
Appellant. Thomas M. DiBiagio, United States Attorney, Ari S.
Casper, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Darryl Evans seeks to appeal his conviction and 120-month
sentence imposed after a jury found him guilty of ten counts of
knowingly shipping child pornography in interstate commerce by
means of a computer, two counts of publishing a notice offering to
buy or exchange child pornography and one count of possession of
child pornography. See 18 U.S.C. §§ 2252A(a)(1), 2252A(a)(5)(B),
2251(c)(1)(A), 2251(d), and 2256 (2000).
Evans’ counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there were no
meritorious grounds for appeal but raising four potential issues:
(1) whether statements Evans made to Government officials should
have been suppressed; (2) whether Evans knowingly and intelligently
waived his right to counsel; (3) whether Evans was properly
subjected to the ten-year mandatory minimum sentence set forth in
18 U.S.C. § 2251(d); and (4) whether the Government condones child
pornography by not shutting down all internet “chat rooms” that may
pertain to child pornography. Evans has filed a supplemental
brief, alleging that he should not have been subjected to the ten-
year mandatory minimum, his sentence is excessive when compared
with the sentences received by similarly situated offenders, and
his standby counsel was ineffective.
We have reviewed the record and conclude that the
district court did not err in refusing to suppress statements Evans
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made to Government officials. Evans made the statements, which
indicated his culpability, voluntarily and, at one point, even
after having been advised by his counsel not to speak. A review of
the record also discloses that Evans knowingly and intelligently
waived his right to counsel. See United States v. Jennings, 323
F.3d 263, 275 (4th Cir.), cert. denied, 124 S. Ct. 531 (2003).
Additionally, Evans was properly subjected to the ten-year
mandatory minimum sentence set forth in § 2251(d). See United
States v. Rast, 293 F.3d 735, 737-38 (4th Cir. 2002). Evans has
not demonstrated that other offenders, convicted under § 2251(d),
were not also subjected to the mandatory minimum sentence.
Counsel’s suggestion that the Government’s failure to eliminate
child pornography from the internet is tantamount to condonation of
the crime is patently meritless. Finally, Evans’ allegation that
his standby counsel was ineffective is not appropriately raised on
direct appeal. Evans is free to raise this claim in the district
court in a motion under 28 U.S.C. § 2255 (2000). See United States
v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).
In accordance with Anders, we have reviewed the entire
record in this case, including the transcripts, and have found no
meritorious issues for appeal. We therefore affirm Evans’
conviction and sentence. We deny the motion to withdraw as counsel
at this time. This court requires that counsel inform his client,
in writing, of his right to petition the Supreme Court of the
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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 to withdraw from
representation at that time. Counsel’s motion must state that a
copy thereof was served on Evans. 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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