United States v. Bobby Burch ( 2022 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4249
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BOBBY ROGER BURCH, a/k/a Rob Patterson, a/k/a Rob Bob,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Asheville. Martin K. Reidinger, Chief District Judge. (1:19-cr-00060-MR-WCM-1)
Submitted: November 30, 2021 Decided: August 16, 2022
Before AGEE, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: D. Baker McIntyre III, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Bobby Roger Burch pled guilty, pursuant to a written plea agreement, to conspiracy
to possess with intent to distribute methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), 846, and the district court sentenced him to 262 months’
imprisonment. On appeal, Burch’s counsel has filed a brief under Anders v. California,
386 U.S. 738 (1967), certifying that no meritorious grounds exist for appeal but broadly
questioning whether Burch’s sentence is reasonable and whether trial counsel was
ineffective. The Government declined to file a response brief. In a pro se supplemental
brief, Burch argues that his sentence is procedurally and substantive unreasonable. We
affirm.
We review a defendant’s sentence “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). To pass muster under this review,
the sentence must be both procedurally and substantively reasonable. Id. at 51. In
determining procedural reasonableness, we consider whether the district court properly
calculated the defendant’s advisory Sentencing Guidelines range, gave the parties an
opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a)
factors, and sufficiently explained the selected sentence. Id. at 49-51. If a sentence is free
of “significant procedural error,” then this court reviews it for substantive reasonableness,
“tak[ing] into account the totality of the circumstances.” Id. at 51. “Any sentence that is
within or below a properly calculated Guidelines range is presumptively reasonable.”
United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). “Such a presumption can
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only be rebutted by showing that the sentence is unreasonable when measured against the
18 U.S.C. § 3553(a) factors.” Id.We discern no procedural error in Burch’s sentence. The district court properly
calculated the advisory Guidelines range, responded to the parties’ nonfrivolous
arguments, and applied the § 3553(a) factors. The district court also provided an
explanation for the chosen sentence. 1 Furthermore, we conclude that the sentence is
substantively reasonable because Burch’s sentence fell within the Guidelines range and
nothing in the record rebuts the presumption of reasonableness accorded to it. See
Louthian, 756 F.3d at 306.
Turning to the issue of ineffective assistance, “[i]t is well settled that a claim of
ineffective assistance should be raised in a 28 U.S.C. § 2255 motion in the district court
rather than on direct appeal, unless the record conclusively shows ineffective assistance.” 2
United States v. Jordan, 952 F.3d 160, 163 n.1 (4th Cir. 2020). In his brief, Anders counsel
asserts that Burch stated he did not have adequate time to meet with his trial counsel and
that trial counsel had assured Burch he would receive a 10-year imprisonment term.
Having reviewed the record, we conclude that ineffective assistance of counsel does not
1
Burch’s appeal was placed in abeyance for our decision in United States v. Oliver,
No. 20-4500, 2022 WL 1223716 (4th Cir. Apr. 26, 2022). Unlike the defendant in Oliver,
however, Burch did not object to the proposed terms of supervised release before the
district court, and we conclude that the district court’s explanation for imposing the
discretionary conditions of supervised release in this case was sufficient.
2
In his pro se brief, Burch states that he primarily seeks to preserve his claims of
ineffective assistance for collateral review proceedings.
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conclusively appear on the present record, so we decline to consider this claim on direct
appeal.
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.
This Court requires that counsel inform Burch, in writing, of the right to petition the
Supreme Court of the United States for further review. If Burch requests that counsel file
such a petition, 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 counsel served a copy thereof on Burch. 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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