United States v. Keewanie Blackburn

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 24, 2019
• Docket: 18-4436
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4436

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KEEWANIE LAMONT BLACKBURN,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:17-cr-00275-WO-1)

Submitted: January 22, 2019 Decided: January 24, 2019

Before MOTZ, KEENAN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro, North Carolina, for Appellant. Robert Albert Jamison Lang, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Keewanie Lamont Blackburn pled guilty, pursuant to a written plea agreement, to

being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2)

(2012). The district court sentenced Blackburn to 50 months of imprisonment. On

appeal, Blackburn’s counsel has submitted a brief pursuant to Anders v. California, 386

U.S. 738 (1967), certifying that there are no meritorious grounds for appeal, but raising

whether Blackburn received ineffective assistance of counsel at trial, whether there was

prosecutorial misconduct related to video footage offered at a motion to suppress

evidence hearing, whether the court erred in denying the motion to suppress, whether the

district court should have granted the motion to suppress, and whether Blackburn’s

upward variance sentence is reasonable. Blackburn filed a pro se supplemental brief and

the Government declined to file a reply brief. We affirm.

Blackburn’s counsel questioned whether Blackburn received effective assistance

of trial counsel. Claims of ineffective assistance of counsel “are generally not cognizable

on direct appeal.” United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008); see United

States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Instead, to allow for adequate

development of the record, a defendant must ordinarily bring his claims in a 28 U.S.C.

§ 2255 (2012) motion. King, 119 F.3d at 295. However, we may entertain such claims

on direct appeal only if “it conclusively appears from the record that defense counsel did

not provide effective representation.” United States v. Richardson, 195 F.3d 192, 198

(4th Cir. 1999) (internal quotation marks omitted). See generally Strickland v.

Washington, 466 U.S. 668, 687 (1984) (setting forth standard). Counsel did not identify

2 any instance of ineffective assistance and none conclusively appears on the record,

therefore we decline to address the claim in this appeal.

Blackburn’s counsel suggests that we review whether the district court properly

denied the motion to suppress and whether there was prosecutorial misconduct related to

video footage of the traffic stop admitted at the suppression hearing. When considering

the denial of a motion to suppress, we review the district court’s legal conclusions de

novo and its factual findings for clear error. United States v. Giddins, 858 F.3d 870, 878-

79 (4th Cir. 2017). This court construes the evidence presented in the light most

favorable to the prevailing party, in this case, the Government. United States v. Stover,

808 F.3d 991, 994 (4th Cir. 2015). We have reviewed the record on appeal, including the

district court’s reasoning and decision denying the motion, and conclude that the court

did not err in denying the motion to suppress and there was no prosecutorial misconduct

evident in the record.

Counsel questions whether Blackburn’s 50-month upward variance sentence is

reasonable. We review the reasonableness of Blackburn’s sentence “under a deferential

abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). We assess

a sentence’s substantive reasonableness under “the totality of the circumstances.” Id. at

51. Although an above-Guidelines-range sentence carries no presumption of

reasonableness on appeal, “a sentence outside the Guidelines carries no presumption of

unreasonableness.” Irizarry v. United States, 553 U.S. 708, 714 (2008). “[W]here the

district court decides that a sentence outside the Guidelines’ advisory range is

appropriate, it must consider the extent of the deviation and ensure that the justification is

3 sufficiently compelling to support the degree of the variance.” United States v. Zuk, 874

F.3d 398, 409 (4th Cir. 2017) (brackets, citation, and internal quotation marks omitted).

“[A] major departure should be supported by a more significant justification than a minor

one.” Gall, 552 U.S. at 50. “While a district court’s explanation for the sentence must

support the degree of the variance, it need not find extraordinary circumstances to justify

a deviation from the Guidelines.” United States v. Spencer, 848 F.3d 324, 327 (4th Cir.

2017) (internal quotation marks and citation omitted).

Here, the district court properly determined the advisory Guidelines range. The

court considered Blackburn’s arguments in mitigation. The court varied upward to 50

months based on the lack of deterrence from an earlier 60-month sentence, that

Blackburn committed the offense while on supervised release for a similar offense, his

extensive criminal record demonstrating a pattern of continued criminal activity, and that

at least one felony conviction was not counted because of age. The court properly

explained its sentence to the degree necessary to justify the deviation from the

Guidelines, including acknowledgement of the degree of the variance and need to

adequately deter Blackburn and protect the public from future crimes. See United States

v. Hargrove, 701 F.3d 156, 163-64 (4th Cir. 2012) (affirming variance from 0-to-6-month

Guidelines range to 60-month sentence, ten times the top of the Guidelines range); United

States v. Diosdado-Star, 630 F.3d 359, 362, 366-67 (4th Cir. 2011) (affirming variance

sentence six years greater than Guidelines range because sentence was based on district

court’s examination of relevant § 3553(a) factors).

4 In accordance with Anders, we have reviewed the record in this case and have

found no meritorious grounds for appeal. We reviewed Blackburn’s pro se supplemental

brief primarily challenging the district court’s credibility determination at the suppression

hearing and the hearing’s outcome, and find no reversible error related to his arguments.

We therefore affirm the district court’s judgment. This court requires that counsel inform

Blackburn, in writing, of the right to petition the Supreme Court of the United States for

further review. If Blackburn 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 Blackburn. 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