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    The United States Court of Appeals for the Fourth Circuit affirmed Angel Fernandez's conviction and below-guidelines 140-month sentence for conspiracy to distribute heroin and using a firearm during a drug trafficking crime. The court found Fernandez's sentence to be both procedurally and substantively reasonable. The court also declined to consider Fernandez's claim of ineffective assistance of counsel on direct appeal, as the record did not conclusively establish that his counsel was ineffective. In accordance with Anders v. California, the court conducted an independent review and found no meritorious issues for appeal.

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    The United States Court of Appeals for the Fourth Circuit affirmed Angel Fernandez's conviction and below-guidelines 140-month sentence for conspiracy to distribute heroin and using a firearm during a drug trafficking crime. The court found Fernandez's sentence to be both procedurally and substantively reasonable. The court also declined to consider Fernandez's claim of ineffective assistance of counsel on direct appeal, as the record did not conclusively establish that his counsel was ineffective. In accordance with Anders v. California, the court conducted an independent review and found no meritorious issues for appeal.

    Original Description:

    Filed: 2012-11-08 Precedential Status: Non-Precedential Docket: 11-4899

    Original Title

    United States v. Angel Fernandez, 4th Cir. (2012)

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    The United States Court of Appeals for the Fourth Circuit affirmed Angel Fernandez's conviction and below-guidelines 140-month sentence for conspiracy to distribute heroin and using a firearm during a drug trafficking crime. The court found Fernandez's sentence to be both procedurally and substantively reasonable. The court also declined to consider Fernandez's claim of ineffective assistance of counsel on direct appeal, as the record did not conclusively establish that his counsel was ineffective. In accordance with Anders v. California, the court conducted an independent review and found no meritorious issues for appeal.

    Copyright:

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    Unpublished

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    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit affirmed Angel Fernandez's conviction and below-guidelines 140-month sentence for conspiracy to distribute heroin and using a firearm during a drug trafficking crime. The court found Fernandez's sentence to be both procedurally and substantively reasonable. The court also declined to consider Fernandez's claim of ineffective assistance of counsel on direct appeal, as the record did not conclusively establish that his counsel was ineffective. In accordance with Anders v. California, the court conducted an independent review and found no meritorious issues for appeal.

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    of 4

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 11-4899

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    ANGEL FERNANDEZ,
    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. (3:10-cr-00131-RJC-1)

    Submitted:

    October 30, 2012

    Decided:

    November 8, 2012

    Before WILKINSON and FLOYD, Circuit Judges, and HAMILTON, Senior


    Circuit Judge.

    Affirmed by unpublished per curiam opinion.

    D. Baker McIntyre III, Charlotte, North Carolina, for Appellant.


    Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
    North Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Angel Fernandez appeals his conviction and the 140month

    sentence

    guilty

    plea

    to

    imposed

    by

    conspiracy

    the
    to

    district

    distribute

    court
    and

    following

    his

    possess

    with

    to

    intent to distribute black tar heroin, in violation of 21 U.S.C.


    846 (2006), and using and carrying a firearm during and in
    relation to a drug trafficking crime, in violation of 18 U.S.C.
    924(c) (2006).

    Fernandezs counsel has filed a brief pursuant

    to Anders v. California, 386 U.S. 738 (1967), asserting that, in


    his opinion, there are no meritorious issues for appeal, but
    questioning whether the sentence imposed was unreasonable and
    whether Fernandez was denied effective assistance of counsel in
    the district court.

    Fernandez was advised of his right to file

    a pro se supplemental brief but he did not file one.


    We

    review

    discretion standard.
    (2007).

    sentence

    under

    deferential

    abuse-of-

    Gall v. United States, 552 U.S. 38, 51

    The first step in this review requires the court to

    ensure the district court committed no significant procedural


    error, such as improperly calculating the Sentencing Guidelines
    range,

    failing

    to

    consider

    the

    18

    U.S.C.

    3553(a)

    (2006)

    factors, or failing to adequately explain the sentence.

    United

    States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).

    If the

    sentence is procedurally reasonable, we consider the substantive


    reasonableness of the sentence, taking into account the totality
    2

    of the circumstances.

    Gall, 552 U.S. at 51.

    A sentence within

    or below a properly calculated Guidelines range is accorded an


    appellate presumption of reasonableness.
    674 F.3d 278, 289 (4th Cir. 2012).

    United States v. Susi,

    We have reviewed the record

    and conclude that Fernandezs below-Guidelines sentence is both


    procedurally and substantively reasonable.
    Turning to Fernandezs contention that his counsel was
    ineffective, such claims are not cognizable on direct appeal
    unless the record conclusively establishes that counsel provided
    ineffective assistance.

    United States v. Benton, 523 F.3d 424,

    435 (4th Cir 2008).

    To allow for adequate development of the

    record,

    ordinarily

    defendant

    assistance
    motion.

    claim

    28

    U.S.C.A.

    bring

    2255

    an

    ineffective

    (West

    Supp.

    2012)

    United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th

    Cir. 2010).
    not

    in

    should

    Because we conclude that the record on appeal does

    conclusively

    establish

    that

    Fernandezs

    counsel

    was

    ineffective, we decline to consider this issue on direct appeal.


    In accordance with Anders, we have reviewed the record
    and have found no meritorious issues for appeal.
    affirm

    Fernandezs

    convictions

    and

    We therefore

    sentence.

    This

    court

    requires that counsel inform Fernandez, in writing, of his right


    to petition the Supreme Court of the United States for further
    review.
    counsel

    If Fernandez requests that a petition be filed, but


    believes

    that

    such

    petition
    3

    would

    be

    frivolous,

    counsel

    may

    move

    representation.

    in

    this

    court

    for

    leave

    to

    withdraw

    from

    Counsels motion must state that a copy thereof

    was served on Fernandez.

    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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