UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4690

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHRISTOPHER LEE YATES,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, Chief District Judge. (3:19-cr-00019-GMG-RWT-1)

Submitted: March 10, 2020 Decided: March 12, 2020

Before NIEMEYER and AGEE, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Shawn R. McDermott, MILLSMCDERMOTT, PLLC, Martinsburg, West Virginia, for Appellant. Jeffrey Akira Finucane, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Christopher Lee Yates pled guilty, pursuant to a written plea agreement, to

possession of stolen firearms,

(j) (2018), and theft of government property,

(2018), and was sentenced to 168 months’ imprisonment. He noted a

timely appeal. Yates’ attorney has filed a brief pursuant to Anders v. California,

(1967), stating that there are no meritorious grounds for appeal but questioning the

validity of Yates’ guilty plea and the reasonableness of his sentence. Yates has filed a

supplemental pro se brief claiming: (1) ineffective assistance of counsel and (2) that the

plea was not supported by a factual basis.

Because Yates did not move in the district court to withdraw his guilty plea, we

review the guilty plea hearing for plain error. United States v. Massenburg,

(4th Cir. 2009). “To establish plain error, [Yates] must show that an error occurred,

that the error was plain, and that the error affected his substantial rights.” United States v.

Muhammad,

(4th Cir. 2007). Even if Yates satisfies these requirements,

“we may exercise our discretion to correct the error only if it seriously affects the fairness,

integrity or public reputation of judicial proceedings.” United States v. Nicholson,

(4th Cir. 2012) (internal quotation marks omitted). Our review of the record

leads us to conclude that the district court complied with Rule 11 of the Federal Rules of

Criminal Procedure in accepting Yates’s guilty plea, which Yates entered knowingly and

voluntarily, and that the plea was supported by a sufficient factual basis.

Turning to Yates’ sentence, we review a sentence for procedural and substantive

reasonableness under a deferential abuse of discretion standard. Gall v. United States, 552

(2007). We must first ensure that the district court did not commit any

“significant procedural error,” such as failing to properly calculate the applicable

Guidelines range, failing to consider the

(a) (2018) sentencing factors, or

failing to adequately explain the sentence.

If we find the sentence procedurally

reasonable, we then consider its substantive reasonableness. United States v. Carter,

(4th Cir. 2009). We presume on appeal that a sentence within or below the

properly calculated Guidelines range is substantively reasonable. United States v.

Louthian,

(4th Cir. 2014). Such a presumption is rebutted only when

the defendant shows “that the sentence is unreasonable when measured against the §

3553(a) factors.” United States v. Montes-Pineda,

(4th Cir. 2006).

We discern no procedural or substantive sentencing error by the district court. The

district court correctly calculated Yates’ advisory Guidelines range, heard argument from

counsel, provided Yates an opportunity to allocute, considered the § 3553(a) sentencing

factors, and sufficiently explained the chosen sentence. We therefore conclude that Yates’

within-Guidelines sentence is both procedurally and substantively reasonable.

Finally, claims of ineffective assistance are cognizable on direct appeal “only where

the record conclusively establishes ineffective assistance.” United States v. Baptiste,

, 216 n.1 (4th Cir. 2010). A defendant should instead generally raise

ineffectiveness claims in a

(2018) motion, to permit sufficient

development of the record. See Massaro v. United States,

(2003).

Because the record does not conclusively show ineffective assistance, we find that Yates’

ineffective assistance claims are not cognizable on direct appeal.

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

no meritorious issues for appeal. Accordingly, we affirm the judgment of the district court.

This court requires that counsel inform Yates, in writing, of the right to petition the

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

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

4