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United States v. Thomason, 07-4866 (2008)

Court: Court of Appeals for the Fourth Circuit Number: 07-4866 Visitors: 31
Filed: Apr. 01, 2008
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4866 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JARVIS DERMAINE THOMASON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry F. Floyd, District Judge. (7:06-cr-01270-HFF) Submitted: March 27, 2008 Decided: April 1, 2008 Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. M
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                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 07-4866



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


JARVIS DERMAINE THOMASON,

                Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:06-cr-01270-HFF)


Submitted:   March 27, 2008                 Decided:   April 1, 2008


Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Margaret A. Chamberlain, CHAMBERLAIN LAW FIRM, Greenville, South
Carolina, for Appellant.      Reginald I. Lloyd, United States
Attorney, Columbia, South Carolina; Elizabeth Jean Howard, OFFICE
OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Jarvis Dermaine Thomason pled guilty to possession of a

firearm   by     a   convicted   felon,    in   violation    of    18   U.S.C.

§§ 922(g)(1), 924(a)(2), 924(e) (2000).            He was sentenced to 188

months of imprisonment and a five-year term of supervised release.

On appeal, his counsel has filed a brief pursuant to Anders v.

California, 
386 U.S. 738
 (1967), asserting there are no meritorious

issues for appeal, but raising for the court’s consideration

(1) whether Thomason’s sentence is reasonable; and (2) whether

counsel was ineffective below.             Thomason has filed a pro se

supplemental brief. The Government declined to file a reply brief.

After reviewing the record, we affirm.

              Thomason first contends his sentence is unreasonable.

Appellate courts review sentences imposed by district courts for

reasonableness, applying an abuse of discretion standard.               Gall v.

United States, 
128 S. Ct. 586
, 597 (2007).               When sentencing a

defendant, a district court must: (1) properly calculate the

guidelines range; (2) determine whether a sentence within that

range serves the factors set out in 18 U.S.C.A. § 3553(a) (West

2000 & Supp. 2007); (3) implement mandatory statutory limitations;

and (4) explain its reasons for selecting a sentence.                   United

States v. Green, 
436 F.3d 449
, 455-56 (4th Cir.), cert. denied, 
547 U.S. 1156
    (2006).    A   sentence    within   a   correctly   calculated

advisory guidelines range is presumptively reasonable.                  United


                                   - 2 -
States v. Moreland, 
437 F.3d 424
, 433 (4th Cir.), cert. denied, 
547 U.S. 1142
 (2006); see also Rita v. United States, 
127 S. Ct. 2456
,

2462-69 (2007) (upholding presumption of reasonableness for within-

guidelines sentence).

            Our    review   of   the    record    reveals   no    procedural     or

substantive error with respect to Thomason’s sentence.                  Thomason’s

188-month sentence, which is within the applicable guidelines range

and below the statutory maximum, is presumptively reasonable.                    We

therefore conclude that the district court did not abuse its

discretion in imposing the sentence.

            Thomason    also     argues    that     his   trial       counsel   was

ineffective because his plea agreement initially included a waiver

of his right to appeal.            Claims of ineffective assistance of

counsel are not cognizable on direct appeal unless the record

conclusively establishes ineffective assistance.                United States v.

Richardson, 
195 F.3d 192
, 198 (4th Cir. 1999).                        To allow for

adequate    development     of    the     record,      claims    of    ineffective

assistance generally should be brought in a 28 U.S.C. § 2255 (2000)

motion. United States v. King, 
119 F.3d 290
, 295 (4th Cir. 1997).

We   find   that    Thomason     has    failed    to    establish      ineffective

assistance of counsel on direct appeal.

            In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal.                       We

further conclude that the claims raised in Thomason’s pro se


                                       - 3 -
supplemental   brief   are   without   merit.      We    therefore   affirm

Thomason’s conviction and sentence.          This court requires that

counsel inform Thomason, in writing, of the right to petition the

Supreme Court of the United States for further review. If Thomason

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 Thomason.         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 -

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