United States v. Moore , 266 F. App'x 229 ( 2008 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 07-4594
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    GENAIA TYRHEEN MOORE,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
    Chief District Judge. (3:06-cr-00022-2)
    Submitted:   January 28, 2008          Decided:     February 15, 2008
    Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Roderick G. Davis, THE LAW OFFICE OF RODERICK G. DAVIS, PLLC,
    Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
    United States Attorney, Charlotte, North Carolina, Amy Elizabeth
    Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
    Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Genaia Tyrheen Moore pled guilty without a plea agreement
    to: conspiracy to commit bank robbery (Count One), bank robbery
    (Count Two), possession of a firearm during a crime of violence
    (Count Three), stealing a firearm that moved in interstate commerce
    (Count Four), and possession of a stolen firearm (Count Five).
    Moore’s advisory guideline range with respect to Counts One, Two,
    Four, and Five, was 46-57 months, reflecting an offense level of 23
    and a criminal history category of I.            Moore also was subject to a
    consecutive five-year sentence on Count Three.               The district court
    concluded that the factors set forth at 
    18 U.S.C.A. § 3553
    (a) (West
    2000   &   Supp.   2007)    warranted      a   sentence   below   the    advisory
    guideline range. The court imposed concurrent sentences of thirty-
    six months on Counts One, Two, Four, and Five, to be followed by
    sixty months on Count Three, for an aggregate sentence of ninety-
    six months.
    Moore now appeals.          Her attorney has filed a brief
    pursuant to Anders v. California, 
    386 U.S. 738
     (1967), alleging
    that the sentence is unreasonable but stating that there are no
    meritorious    issues      for   review.       Moore   has   filed   a    pro   se
    supplemental brief asserting that counsel was ineffective. Finding
    no reversible error, we affirm.
    We review a sentence imposed after United States v.
    Booker, 
    543 U.S. 220
     (2005), to determine whether it is “within the
    - 2 -
    statutorily            prescribed      range”      and    reasonable.         United
    States v. Hughes, 
    401 F.3d 540
    , 546-47 (4th Cir. 2005).                          Here,
    Moore’s sentence was statutorily authorized. Reasonableness review
    requires us to consider whether the chosen sentence constitutes an
    abuse of discretion. United States v. Pauley, No. 07-4270, 
    2007 WL 4555520
    , at *5 (4th Cir. Dec. 28, 2007).                 In making this decision,
    we first examine the sentence “for significant procedural errors.”
    
    Id.
            There were no such errors in this case; we note that the
    sentencing        court:    correctly      calculated     the   advisory   guideline
    range; heard from the parties regarding an appropriate sentence;
    considered the factors set forth at 
    18 U.S.C.A. § 3553
    (a) (West
    2000       &   Supp.    2007);   and    articulated      compelling   reasons*    for
    imposing a variance sentence. Id.; see Gall v. United States, No.
    06-7949, 
    2007 WL 4292116
    , at *7 (U.S. Dec. 10, 2007).                             Our
    reasonableness review also requires us to consider the substance of
    the    sentence         taking      into   account       “the   totality    of    the
    circumstances.”          Pauley, 
    2007 WL 4555520
    , at *5.          We conclude that
    the variance sentence, which falls roughly twenty percent below the
    lowest end of the advisory guideline range, was also substantively
    reasonable.
    *
    The district court measured the nature and seriousness of the
    crimes against Moore’s “horrific background and history of
    psychiatric care and suicide attempts, in combination with a crack
    addiction.”    These factors, the court found, placed her in a
    different position than many defendants who appear before the court
    for sentencing.
    - 3 -
    Moore’s claim of ineffective assistance of counsel is not
    cognizable   on   direct   appeal   because      ineffectiveness       does   not
    conclusively appear on the face of the record.             Moore should raise
    the claim, if at all, in a motion filed pursuant to 
    28 U.S.C. § 2255
     (2000).    See United States v. Richardson, 
    195 F.3d 192
    , 198
    (4th Cir. 1999); United States v. King, 
    195 F.3d 192
    , 198 (4th Cir.
    1999).
    We have examined the entire record in this case in
    accordance   with   the    requirements     of   Anders,    and   we   find    no
    meritorious issues for appeal. Accordingly, we affirm. This court
    requires counsel inform his client, in writing, of her 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, counsel may move
    in this court for leave to withdraw from representation. Counsel’s
    motion must state that a copy of the motion 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
    - 4 -
    

Document Info

Docket Number: 07-4594

Citation Numbers: 266 F. App'x 229

Judges: King, Michael, Niemeyer, Per Curiam

Filed Date: 2/15/2008

Precedential Status: Non-Precedential

Modified Date: 8/7/2023