US v. Tony Miller, No. 11-4037 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4037 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TONY LEE MILLER, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:10-cr-00028-IMK-1) Submitted: October 28, 2011 Decided: November 16, 2011 Before WILKINSON, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Stephen D. Herndon, Wheeling, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Brandon S. Flower, Assistant United States Attorney, Clarksburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Tony Lee Miller appeals his conviction, following a jury trial, of possessing a prohibited object while incarcerated, in violation of 18 U.S.C. § 1791(a)(2) (2006), and the resulting thirty-month sentence. accordance with Anders v. Counsel filed a brief in 386 California, U.S. 738 (1967), certifying that there are no meritorious issues for appeal but asking this Court to review jurisdiction over Miller. whether the district court had In his pro se supplemental brief, Miller argues that the district court lacked jurisdiction, that he received district ineffective court committed assistance of sentencing counsel, errors. and The that the Government filed a responsive brief. Subject-matter jurisdiction in every federal criminal prosecution comes from 18 U.S.C. § 3231 and there can be no doubt that Article III permits Congress to assign federal criminal prosecutions to federal courts. United States v. Hartwell, 448 F.3d 707, 716 (4th Cir. 2006) (quoting Hugi v. United States, 164 F.3d 378, 380 (7th Cir. 1999). criminal prosecution, [p]ersonal jurisdiction In a federal is supplied by the fact that [the defendant] is within the territory of the United States. (7th Cir. 2005). States United States v. Burke, Here, Miller was incarcerated penitentiary and charged 2 with 425 violating F.3d in a 400, a law 408 United of the United States, 18 U.S.C. § 1791. Thus, the district court had personal jurisdiction and subject matter over Miller s prosecution. Next, Miller argues that trial counsel s representation was constitutionally deficient because he failed to contest appellate the counsel district court s addressed jurisdiction. multiple grounds on Miller s which trial counsel might have rendered ineffective assistance. To establish ineffective assistance of counsel, Miller must show that counsel s performance fell below an objective standard of performance reasonableness, resulted in and prejudice that to counsel s Miller. Washington, 466 U.S. 668, 687-88 (1984). deficient Strickland v. Claims of ineffective assistance of counsel are generally not cognizable on direct appeal, unless counsel s ineffectiveness conclusively appears from the record. United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Trial counsel s ineffectiveness does not conclusively appear on this record. Accordingly, Miller must bring his claims under 28 U.S.C.A. § 2255 (West Supp. 2011) in order to allow for adequate development of the record. United States v. Baptiste, 596 F.3d 214, 216-17 n.1 See (4th Cir. 2010). Turning to Miller s sentence, we review the imposed sentence for reasonableness, applying 3 an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Llamas, review requires 599 F.3d 381, consideration 387 of (4th Cir. 2010). both the In considers determining whether the procedural district procedural reasonableness, court and Gall, 552 U.S. at substantive reasonableness of the sentence. 51. This properly this Court calculated the defendant s advisory Guidelines range, considered the 18 U.S.C. § 3553(a) parties, factors, and analyzed sufficiently Gall, 552 U.S. at 51. any arguments explained the presented selected by the sentence. A sentence is reviewed for substantive reasonableness by examining the totality of the circumstances. Id.; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). We presume that a sentence within a properly determined advisory Guidelines range is substantively reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). In his pro se supplemental brief, Miller argues that the district court committed plain error in assigning three criminal history points for a 1992 Florida conviction because he was not represented by counsel and did not waive his right to counsel. Generally, prior convictions a used defendant to may not collaterally attack enhance his sentence. United States v. Bacon, 94 F.3d 158, 162 (4th Cir. 1996). However, in Custis v. United States, 511 U.S. 485 (1994), the Supreme Court 4 held that counsel convictions fell obtained outside the in general violation rule. of Id. the at right 487. to The defendant bears the burden of proof on such claim, because even when a collateral constitutional attack grounds, on the a final presumption conviction of rests regularity on that attaches to final judgments makes it appropriate to assign a Parke v. Raley, 506 U.S. 20, 31 proof burden to the defendant. (1992); see also United States v. Reyes-Solano, 543 F.3d 474, 478 (8th Cir. 2008). Miller s conclusory allegation that his 1992 Florida conviction was obtained in violation of his right to counsel is insufficient to carry this burden. Miller also argues that counsel and the district court prevented him from objecting to the presentence report ( PSR ). This contention is contradicted by the record. Miller s objections were not related to the PSR and, in any event, the district court gave Miller ample opportunity to voice his objections during his allocution. In accordance with Anders, we have reviewed the entire record in this case and have found no other meritorious issues. Accordingly, we affirm Miller s conviction and sentence. We deny Miller s motion for transcripts of the pretrial proceedings at government expense. This Court requires that counsel inform Miller, in writing, of the right to petition the Supreme Court of the United States for further review. 5 If Miller 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 Miller. We dispense with oral argument because the facts and legal before contentions the Court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 6

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