United States v. Ajarhi Roberts

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 11, 2019
• Docket: 18-4551
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4551

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

AJARHI SAVIMI ROBERTS, a/k/a Ajarhi Savimbi Roberts, a/k/a Wayne Roberts,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, Chief District Judge. (3:17-cr-00050-GMG-RWT-1)

Submitted: March 28, 2019 Decided: April 11, 2019

Before WILKINSON, NIEMEYER, and RICHARDSON, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Charles T. Berry, Fairmont, West Virginia, for Appellant. Lara Kay Omps-Botteicher, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Ajarhi Savimi Roberts appeals his conviction and the 24-month sentence imposed

after his guilty plea, pursuant to a plea agreement, to bank fraud, in violation of 18 U.S.C.

§ 1344(1) (2012). Roberts’ attorney has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), stating that there are no meritorious issues for appeal but

questioning whether the district court properly calculated Roberts’ advisory Guidelines

range, whether the prosecutor committed misconduct, and whether Roberts received

effective assistance of counsel. Although advised of his right to do so, Roberts did not

file a pro se supplemental brief. We affirm.

We review Roberts’ sentence for both procedural and substantive reasonableness

“under a deferential abuse of discretion standard.” Gall v. United States, 552 U.S. 38, 51

(2007). We “first ensure that the district court committed no significant procedural error,

such as failing to calculate (or improperly calculating) the [Sentencing] Guidelines range,

. . . failing to consider the [18 U.S.C.] § 3553(a) factors, . . . or failing to adequately

explain the chosen sentence.” Id.; see 18 U.S.C. § 3553(a)(2012). If there is no

significant procedural error, we then consider the sentence’s substantive reasonableness

under “the totality of the circumstances, including the extent of any variance from the

Guidelines range.” Gall, 552 U.S. at 51. We presume that a sentence within a properly

calculated Guidelines range is substantively reasonable, and a defendant can rebut this

presumption only “by showing that the sentence is unreasonable when measured against

the 18 U.S.C. § 3553(a) factors.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir.

2014).

2 Having carefully reviewed the record, we find no error in the district court’s

imposition of Roberts’ sentence. The district court properly calculated the advisory

Sentencing Guidelines range and sufficiently explained its reasons for imposing the

sentence Roberts received. * Furthermore, Roberts has not made the showing necessary to

rebut the presumption of reasonableness that we afford his within-Guidelines range

sentence.

Roberts next argues that his counsel was ineffective for failing to file a timely

notice of appeal and advising him to enter into a plea agreement that did not include

stipulations as to sentencing factors applicable to his offense. The first argument is

moot—the remedy for such a claim is an appeal, which Roberts is receiving. See In re

Goddard, 170 F.3d 435, 438 (4th Cir. 1999). As to the second issue, we are not

persuaded that any deficient performance by counsel appears conclusively on the face of

the record. See United States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014) (noting that

claims of ineffective assistance of counsel may be raised on direct appeal “if and only if it

conclusively appears from the record that . . . counsel did not provide effective

assistance.” (emphasis and internal quotation marks omitted)).

In accordance with Anders, we have reviewed the entire record in this case; we

have found no meritorious issues for appeal. We therefore affirm Roberts’ conviction

and sentence. This court requires that counsel inform Roberts, in writing, of the right to

* Counsel’s suggestion that the prosecutor engaged in misconduct by failing to object to a particular offense level enhancement is without merit, as we conclude that the enhancement was properly imposed and there was thus no basis for an objection.

3 petition the Supreme Court of the United States for further review. If Roberts 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 Roberts.

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