United States v. Lee , 397 F. App'x 889 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4485
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RYAN OSHAY LEE, a/k/a Bloody,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (7:07-cr-00079-D-1)
Submitted: September 2, 2010 Decided: October 15, 2010
Before NIEMEYER, GREGORY, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville,
North Carolina, for Appellant. Jennifer P. May-Parker, Stephen
Aubrey West, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to the terms of his written plea agreement,
Ryan Oshay Lee pleaded guilty to possession with intent to
distribute five grams or more of crack cocaine, in violation of
21 U.S.C. § 841(a)(1) (2006). The district court notified the
parties that, pursuant to U.S. Sentencing Guidelines Manual
(“USSG”) § 4A1.3(a)(4)(B), p.s. (2007), it intended to depart
upward from Lee’s advisory Guidelines range of 188-235 months’
imprisonment. See Fed. R. Crim. P. 32(h). After hearing
extensive argument on the issue, the court sentenced Lee to 336
months’ imprisonment. This appeal timely followed.
Counsel for Lee has filed his brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that, in his
view, there are no meritorious issues, but questioning whether
the district court abused its discretion in denying Lee’s
request for the substitution of counsel and the reasonableness
of Lee’s sentence. Although advised of his right to file a pro
se supplemental brief, Lee has not done so. For the following
reasons, we affirm.
We review the denial of a motion for the appointment
of new counsel for an abuse of discretion. United States v.
Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir. 1994). In
evaluating whether the trial court abused its discretion, this
court considers: (1) the timeliness of the motion; (2) the
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adequacy of the inquiry into the defendant’s complaint about his
attorney; and (3) whether the attorney/client conflict was so
great that it resulted in a total lack of communication
preventing an adequate defense. United States v. Reevey, 364
F.3d 151, 156 (4th Cir. 2004). These factors are balanced
against the district court’s “interest in the orderly
administration of justice.” Id. at 157.
Prior to his first sentencing hearing, Lee moved the
court to replace his second court-appointed attorney. Although
the court granted the motion and appointed Lee his third
attorney, the court warned Lee that he would not be permitted to
postpone sentencing by firing his attorneys. When sentencing
reconvened, Lee requested that the district court permit the
withdrawal of his new attorney. The district court denied the
motion.
We conclude that the district court did not abuse its
discretion in denying Lee’s motion. The district court
concluded that the motion was untimely, as it was made at the
beginning of Lee’s sentencing hearing. Moreover, there was an
insufficient basis for the motion, which was predicated
exclusively on the fact that counsel had conferred with Lee only
once prior to sentencing and that counsel had not provided Lee
discovery materials. Finally, there was not a complete break-
down in communication between Lee and counsel. Accordingly, we
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affirm the district court’s denial of Lee’s motion. 1 See id. at
156-57.
Counsel also asks this court to review the 336-month
sentence the district court imposed, which was 101 months
greater than the high end of Lee’s Guidelines range. We review
a sentence for reasonableness, applying a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007); see also United States v. Llamas, 599 F.3d 381, 387 (4th
Cir. 2010). This review requires appellate consideration of
both the procedural and substantive reasonableness of a
sentence. Gall, 552 U.S. at 51. In determining the procedural
reasonableness of a sentence, this court considers whether the
district court properly calculated the defendant’s advisory
Guidelines range, considered the 18 U.S.C. § 3553(a) (2006)
factors, analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. “Regardless
of whether the district court imposes an above, below, or
1
Counsel suggests that Lee’s request for appointment of new
counsel implies that counsel was constitutionally deficient in
his representation. We conclude, however, that it is not
apparent on the face of the record that counsel was ineffective.
Accordingly, we decline to consider this issue on direct appeal.
See United States v. Benton, 523 F.3d 424, 435 (4th Cir.), cert.
denied, 129 S. Ct. 490 (2008); United States v. Richardson, 195
F.3d 192, 198 (4th Cir. 1999) (providing standard and noting
that ineffective assistance of counsel claims generally should
be raised by motion under 28 U.S.C.A. § 2255 (West Supp. 2010)).
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within-Guidelines sentence, it must place on the record an
individualized assessment based on the particular facts of the
case before it.” United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009) (internal quotation marks omitted). This court
next assesses the substantive reasonableness of the sentence,
“taking into account the ‘totality of the circumstances,
including the extent of any variance from the Guidelines
range.’” United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007) (quoting Gall, 552 U.S. at 51).
In assessing a sentencing court’s decision to depart
from a defendant’s Guidelines range, this court “consider[s]
whether the sentencing court acted reasonably both with respect
to its decision to impose such a sentence and with respect to
the extent of the divergence from the sentencing range.” United
States v. McNeill, 598 F.3d 161, 166 (4th Cir.) (internal
quotation marks omitted), petition for cert. filed, __ U.S.L.W.
__ (U.S. July 2, 2010) (No. 10-5258). Thus, this court will
defer to the district court’s sentencing decision so long as it
is reasonable, and we will not reverse a sentence simply because
it “would not have been the choice of the appellate court.”
United States v. Evans, 526 F.3d 155, 160 (4th Cir.), cert.
denied, 129 S. Ct. 476 (2008).
The district court’s decision to depart upward from
Lee’s Guidelines range was informed by his extensive criminal
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history. Lee, who was twenty-one years old at the time he was
sentenced, had twenty-seven prior convictions, eight of which
were for felony offenses. The court further noted that Lee’s
crimes were increasingly violent, that he was a known gang
leader, and that he had several probation violations. The
relevant policy statement specifically contemplates an upward
departure on the basis of the extent and nature of a defendant’s
criminal history even when, as Lee did here, the defendant has a
category VI criminal history. See USSG § 4A1.3(a)(4)(B), p.s.
In the background commentary to this policy statement, the
Sentencing Commission recognized that an upward departure may be
appropriate for “younger defendants (e.g., defendants in their
early twenties or younger) who are more likely to have received
repeated lenient treatment, . . . [as they] may actually pose a
greater risk of serious recidivism than older defendants.” USSG
§ 4A1.3, p.s., comment. (backg’d). This was precisely the
scenario present in this case, and we hold that the district
court’s decision to depart was neither procedurally nor
substantively unreasonable. See McNeill, 598 F.3d at 166.
We must next consider the reasonableness of the extent
of the departure in this case. Because Lee had a category VI
criminal history, the district court considered incrementally
higher offense levels, see USSG § 4A1.3(a)(4)(B), p.s., and
offered salient reasons for rejecting the offense levels between
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Lee’s total adjusted offense level (thirty-one) and the offense
level it deemed appropriate (thirty-five). The court found that
the interim offense levels did not adequately reflect the
seriousness of Lee’s criminal history or the strong likelihood
that, without adequate deterrence, he would continue to commit
crimes, particularly violent crimes, upon his return to the
community.
We conclude that the district court adhered to the
proper procedure for a departure pursuant to USSG
§ 4A1.3(a)(4)(B), p.s.; see United States v. Dalton, 477 F.3d
195, 199 (4th Cir. 2007) (explaining incremental approach and
sentencing court’s obligation to state its basis for departing).
Further, we hold that the extent of the departure is reasonable
in light of the seriousness of Lee’s criminal history and his
alarming rate of recidivism. See McNeill, 598 F.3d at 166-67.
For these reasons, we affirm Lee’s sentence. 2
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none. The
district court complied with the mandates of Federal Rule of
2
Finally, Lee suggests the district court did not afford
counsel a sufficient opportunity to be heard at sentencing. To
the contrary, the record reveals that the district court gave
counsel ample opportunity both to argue against the upward
departure and for a sentence at the low end of the post-
departure range. Accordingly, we reject this argument.
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Criminal Procedure 11 in accepting Lee’s guilty plea, which was
knowing and voluntary. Accordingly, we affirm the district
court’s judgment. 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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