UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-4154

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

THOMAS EDWARD NORMAN,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at 

Spartanburg. Henry M. Herlong, Jr., Senior District Judge. (7:17-cr-00527-HMH-1)

Submitted: April 4, 2023 Decided: May 15, 2023

Before KING and THACKER, Circuit Judges, and MOTZ, Senior Circuit Judge.

Dismissed in part and affirmed in part by unpublished per curiam opinion.

ON BRIEF: Janis Richardson Hall, Greenville, South Carolina, for Appellant. Arthur 

Bradley Parham, Assistant United States Attorney, Florence, South Carolina, Kathleen 

Michelle Stoughton, Assistant United States Attorney, OFFICE OF THE UNITED 

STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

In March 2020, Thomas Edward Norman filed a 28 U.S.C. § 2255 motion to vacate 

his drug and firearm convictions and sentence. The district court granted the § 2255 motion 

in part, agreeing that Norman’s counsel rendered ineffective assistance in failing to object 

to the application of a sentencing enhancement, and ordered that he be resentenced without

the inapplicable enhancement. The court denied the § 2255 motion as to all other claims. 

The court thereafter resentenced Norman to an aggregate term of 90 months’ 

imprisonment. Norman appeals the denial of the remainder of his § 2255 motion and the 

sentence imposed on resentencing.

Norman’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 

(1967), asserting that there are no meritorious issues for appeal but questioning whether 

the district court imposed an unreasonable sentence. Norman has filed a pro se 

supplemental brief challenging the district court’s denial of several of the claims he raised 

in his § 2255 motion and asserting that his counsel rendered ineffective assistance at 

resentencing. The Government has declined to file a response brief.

To begin, an amended judgment entered as a result of a § 2255 resentencing “is a 

hybrid order that is both part of the petitioner’s § 2255 proceeding and part of his criminal 

case.” United States v. Hadden, 475 F.3d 652, 664 (4th Cir. 2007). To the extent Norman 

seeks to appeal the order by assigning error to the district court’s denial of relief on some 

of the claims in his § 2255 motion, “he is appealing ‘the final order in a proceeding under 

§ 2255’ and must obtain a [certificate of appealability] under § 2253.” Id. (quoting 28 

U.S.C. § 2253(c)(1)(B)). On the other hand, to the extent Norman seeks to challenge the 

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propriety of the relief granted—for instance, whether the relief was proper under § 2255 or 

whether the new sentence contravenes the Sentencing Guidelines—“he is appealing a new 

criminal sentence” and, accordingly, need not first secure a certificate of appealability. Id. 

For the reasons discussed below, we deny a certificate of appealability and dismiss the 

portion of Norman’s appeal challenging the district court’s order denying in part his § 2255 

motion, and we affirm the amended criminal judgment.

We first consider Norman’s appeal of the district court’s earlier order denying relief 

on all but one of the claims asserted in Norman’s § 2255 motion. This order is not 

appealable unless a circuit justice or judge issues a certificate of appealability. See 28 

U.S.C. § 2253(c)(1)(B). A certificate of appealability will not issue absent “a substantial 

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the district 

court denies relief on the merits, a prisoner satisfies this standard by demonstrating that 

reasonable jurists could find the district court’s assessment of the constitutional claims 

debatable or wrong. See Buck v. Davis, 590 U.S. 100, 115-17 (2017). When the district 

court denies relief on procedural grounds, the prisoner must demonstrate both that the 

dispositive procedural ruling is debatable and that the motion states a debatable claim of 

the denial of a constitutional right. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing 

Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

We have independently reviewed the record and conclude that Norman has not 

made the requisite showing. Accordingly, we deny a certificate of appealability and 

dismiss this appeal as to the district court’s July 17, 2020, order denying in part Norman’s 

§ 2255 motion.

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We turn, then, to Norman’s appeal of the amended criminal judgment, which was 

imposed after the district court resentenced Norman pursuant to the prior grant of partial 

§ 2255 relief. We review “the reasonableness of a sentence under 18 U.S.C. § 3553(a) 

using an abuse-of-discretion standard.” United States v. Nance, 957 F.3d 204, 212 

(4th Cir. 2020). We must first “evaluate procedural reasonableness, determining whether 

the district court committed any procedural error, such as improperly calculating the 

Guidelines range, failing to consider the § 3553(a) factors, or failing to adequately explain 

the chosen sentence.” Id. (citing Gall v. United States, 552 U.S. 38, 51 (2007)). “If the 

sentence is procedurally sound, we then consider the substantive reasonableness of the 

sentence, taking into account ‘the totality of the circumstances.’” United States v. McCain, 

974 F.3d 506, 515 (4th Cir. 2020) (quoting Gall, 552 U.S. at 51). “Any sentence that is 

within or below a properly calculated Guidelines range is presumptively [substantively] 

reasonable.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014) (citing United 

States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008)). “Such a presumption can only be 

rebutted by showing that the sentence is unreasonable when measured against the 18 U.S.C. 

§ 3553(a) factors.” Id.

During the resentencing hearing, the district court accurately calculated Norman’s 

advisory Guidelines range, considered the parties’ arguments and the § 3553(a) factors, 

and adequately explained the chosen sentence. Accordingly, Norman’s sentence is 

procedurally reasonable. We further conclude that Norman has failed to rebut the 

presumption that his within-Guidelines sentence is substantively reasonable.

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Finally, Norman claims that his counsel rendered ineffective assistance at the 

resentencing hearing. We do not consider ineffective assistance of counsel claims on direct 

appeal “[u]nless an attorney’s ineffectiveness conclusively appears on the face of the 

record.” United States v. Faulls, 821 F.3d 502, 507 (4th Cir. 2016) (citing United States v. 

Benton, 523 F.3d 424, 435 (4th Cir. 2008)). The present record does not conclusively show 

that counsel’s performance was ineffective. Accordingly, Norman’s claim is not 

cognizable on direct appeal.

In accordance with Anders, we have reviewed the entire record and have found no 

other meritorious grounds for appeal. We therefore deny a certificate of appealability and 

dismiss Norman’s appeal of the district court’s order denying in part his § 2255 motion, 

and we affirm the amended criminal judgment. This court requires that counsel inform her 

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 this court and argument would not aid the 

decisional process.

DISMISSED IN PART

AND AFFIRMED IN PART

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