UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-4376

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BAXTER WORTH PASCHAL, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Chief District Judge. (1:05-cr-00383-NCT)

Submitted: November 15, 2006 Decided: January 3, 2007

Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, William C. Ingram, First Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Anna Mills Wagner, United States Attorney, Harry L. Hobgood, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Baxter Worth Paschal, Jr., appeals from his conviction

pursuant to a guilty plea to endeavoring to obstruct and impede the

due administration of the internal revenue laws, in violation of

(a) (2000). Paschal’s counsel filed a brief pursuant

to Anders v. California,

(1967), stating that there

are no meritorious issues for appeal, but raising the issue of

whether Paschal’s sentence was reasonable. Paschal was given an

opportunity to file a supplemental pro se brief, and has made

numerous allegations regarding his conviction and sentence.

Because our review of the record discloses no reversible error, we

affirm.

Paschal’s first issue on appeal is that his sentence is

unreasonable, contending that the district court’s findings were

based on “insufficient and inadequate allegations and proof.”

Paschal alleges that the district court relied on the “inaccurate”

testimony of IRS Agent Thomas Beers, who was “incompetent” to

testify because he lacked accurate personal knowledge of the events

and admitted that he did not bring the necessary documents to the

hearing.

This court reviews the imposition of a sentence for

reasonableness. United States v. Booker,

(2005); United States v. Hughes,

(4th Cir.

2005). After Booker, courts must calculate the appropriate

- 2 - guideline range, making any appropriate factual findings. United

States v. Davenport,

(4th Cir. 2006). The court

then should consider the resulting advisory guideline range in

conjunction with the factors under

(a) (West 2000

& Supp. 2006), and determine an appropriate sentence. Davenport,

. A post-Booker sentence may be unreasonable for

procedural and substantive reasons. “A sentence may be

procedurally unreasonable, for example, if the district court

provides an inadequate statement of reasons. . . . A sentence may

be substantively unreasonable if the court relies on an improper

factor or rejects policies articulated by Congress or the

Sentencing Commission.” United States v. Moreland,

(4th Cir.) (citations omitted), cert. denied,

(2006). However, a sentence within the proper advisory guidelines

range is presumptively reasonable. United States v. Green,

(4th Cir.), cert. denied,

(2006).

At sentencing, Paschal failed to object to the

calculation of the guideline range as laid out in the pre-sentence

report. The district court imposed a sentence of sixteen months’

imprisonment, which is within the advisory guideline range of

twelve to eighteen months and is, therefore, presumptively

reasonable. See Green,

. Paschal has made no

showing that the sentence is procedurally or substantively

unreasonable. The district court judge clearly laid out his

- 3 - reasoning, pursuant to

(c) (2000), stating that he

was ready to sentence Paschal at the low end of the guidelines, but

added four months of imprisonment due to Paschal’s continued

attempts to minimize his criminal participation.

While IRS Agent Beers admitted that he did not prepare to

be on the stand, he was called to testify only after the district

court requested further evidence following Paschal’s letter, which

the court deemed to be an evasion of responsibility for the

offense. Agent Beers testified at length on the investigation and

his meeting with Paschal. Paschal was given an opportunity to

respond to Beers’ testimony. The district court’s determination

that Beers was a credible witness is not reviewable on appeal. See

United States v. Hobbs,

, 390 n.11 (4th Cir. 1998);

United States v. Saunders,

(4th Cir. 1989). As

such, the district court’s decision to impose a sentence in the

middle of the guideline range was reasonable in light of the

testimony and evidence presented.

Paschal next asserts that there was insufficient evidence

to support his guilty plea. A defendant’s statements at a Fed. R.

Crim. P. 11 hearing are presumed to be true. Blackledge v.

Allison,

(1977). A knowing and voluntary guilty

plea constitutes an admission of the material elements of the

crime. McCarthy v. United States,

(1969) (Rule

- 4 - 11 requires the judge to determine that there is a factual basis

for the plea).

During the Rule 11 proceeding, the district court

addressed Paschal directly and made a detailed description as to

the elements of the crime charged and the proof necessary for

conviction. Paschal stated that he understood the nature of his

plea, and after conferring with his counsel, reaffirmed that he had

no questions as to the plea he was entering. Paschal also stated

that he had reviewed the factual basis statement with his attorney,

and that except for a “relatively minor point of disagreement,” the

facts were stated accurately. Paschal now contends that he did not

know that certain documents, described as 433 forms, were going to

be submitted to the IRS, and that he “withdrew” the forms once he

discovered this fact. However, these assertions are contradicted

by the facts agreed to by Paschal as part of his plea agreement, as

well as the testimony of Agent Beers.

Paschal also contends that the 433 forms that were

submitted to the IRS were “not within the purview of

,” and that the statute requires “corruptive” behavior that

impedes administration of internal revenue laws. However, the

offense of corruptly obstructing or impeding administration of

internal revenue laws also includes fraud and misrepresentation as

charged in this case. See United States v. Mitchell,

(4th Cir. 1993).

- 5 - Paschal’s third allegation on appeal is that his trial

counsel was ineffective for pressuring him to enter a guilty plea,

failing to prepare properly for the sentencing hearing, incorrectly

advising Paschal as to the sentence he would receive, and

preventing the district court from timely reviewing the mitigating

evidence by mailing it to the wrong address. However, a claim of

ineffective assistance of counsel should be raised in a

(2000) motion with the district court, rather than on direct

appeal, unless the record conclusively demonstrates ineffective

assistance. United States v. King,

(4th Cir.

1997) (internal citations and quotations omitted). Such a claim

cannot be raised on direct appeal where the appellant has not

raised the issue before the district court, as it is unfair to

consider the issue prior to any statement from counsel on the

record. United States v. DeFusco,

(4th Cir.

1991). The record in this case does not conclusively demonstrate

that counsel was ineffective, and therefore we decline to consider

Paschal’s ineffective assistance of counsel claims on direct

appeal.

Paschal’s fourth contention is that the district court

failed to consider the mitigating evidence submitted at the

hearing, specifically letters that were written on his behalf.

While Paschal’s attorney failed to submit these letters prior to

the hearing, the court did accept them for consideration at the

- 6 - hearing. It is clear from the record that the letter Paschal wrote

was reviewed by the district court; however, such consideration

ultimately was to his detriment, as the district court stated that

it would have “reluctantly” accepted the Government’s

recommendation of twelve months’ imprisonment absent the letter.

While the transcript does not give any indication as to whether the

district court actually read the letters submitted by Paschal’s son

and former wife, the court did accept all of the letters for

consideration. The district court stated that it was taking

Paschal’s letter into consideration as part of its assessment under

§ 3553(a), and it gave Paschal an additional opportunity to address

the court on the issue of mitigation. See Klingstein v. United

States,

(4th Cir. 1954) (despite allegation that

judge did not read letters offered in mitigation, defendant

properly was given an opportunity to offer evidence and address the

court). Thus, Paschal has failed to demonstrate that the district

court did not consider the mitigating evidence submitted in this

case.

Paschal’s final contention is that the preponderance of

evidence standard used for sentencing determinations should not

apply in his case, and the higher “clear and convincing evidence”

standard should be imposed under the “special circumstances” of his

case. However, this court has authoritatively determined that

sentencing decisions made on the preponderance of the evidence

- 7 - comport with the requirements of the Sixth Amendment. See United

States v. Morris,

(4th Cir. 2005), cert. denied,

,

(U.S. Oct. 2, 2006) (No. 05-

11378); see also United States v. Okai,

(8th Cir.

2006) (preponderance of evidence standard does not violate due

process requirements).

In accordance with Anders, we have reviewed the record in

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

considered the arguments asserted in the pro se brief submitted by

Paschal and find them to be without merit. We therefore affirm

Paschal’s conviction and sentence. This court requires counsel to

inform his client, in writing, of his 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, 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 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

- 8 -