UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-4283

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ROBERT LEE SMITH,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. William L. Osteen, 

Jr., Chief District Judge. (1:15-cr-00166-WO-1)

Submitted: November 29, 2016 Decided: December 22, 2016

Before TRAXLER, DIAZ, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, Kathleen A. Gleason, 

Assistant Federal Public Defender, Greensboro, North Carolina, 

for Appellant. Terry Michael Meinecke, Assistant United States 

Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Robert Lee Smith appeals from his conviction and 106-month 

sentence entered pursuant to the jury verdict finding him guilty 

of possession of a firearm by a convicted felon. On appeal, 

counsel has filed a brief under Anders v. California, 386 U.S. 

738 (1967), concluding that there are no meritorious issues but 

raising the issue of whether Smith’s sentence is substantively 

unreasonable. Smith filed a pro se supplemental brief stating 

that he received ineffective assistance of trial and appellate 

counsel. We affirm.

On appeal, counsel contends that the district court erred 

by not giving sufficient weight to Smith’s age and cognitive 

issues related to alcohol when fashioning his sentence. We

review the reasonableness of a sentence under 18 U.S.C. 

§ 3553(a) (2012) for abuse of discretion. United States v. 

Lymas, 781 F.3d 106, 111 (4th Cir. 2015) (citing Gall v. United 

States, 552 U.S. 38, 41 (2007)). We presume that a sentence 

within the Guidelines range is substantively reasonable. United 

States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). The 

presumption can only be rebutted by showing that the sentence is 

unreasonable when measured against the § 3553(a) factors. 

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

Based on the totality of the circumstances, we find that 

Smith failed to rebut the presumption that his sentence is 
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reasonable when measured against the § 3553(a) factors, and we

must give due deference to the court’s reasoned and reasonable 

decision that those factors justified the sentence that it 

imposed. See United States v. Diosdado-Star, 630 F.3d 359, 367 

(4th Cir. 2011) (citation and quotation marks omitted). The 

district court specifically considered the factors relied upon 

by Smith and balanced them against the other factors to arrive 

at a sentence below that argued for by the Government. Further, 

Smith provides no reason why his age and alcohol abuse should 

outweigh his dangerous, repetitive criminal behavior. Thus, we 

conclude that the district court reasonably rejected Smith’s 

request for a lower sentence and reasonably determined a 

sentence towards the lower end of his Guidelines range was 

appropriate in this case.

In his pro se supplemental brief, Smith contends that he 

received ineffective assistance of trial and appellate counsel. 

“It is well established that a defendant may raise a claim of 

ineffective assistance of counsel in the first instance on 

direct appeal if and only if it conclusively appears from the 

record that counsel did not provide effective assistance.” 

United States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014). 

Absent such a showing, ineffective assistance claims should be 

raised in a motion brought pursuant to 28 U.S.C. § 2255 (2012), 

in order to permit sufficient development of the record. United 
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States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). We 

find that Smith’s claims of ineffective assistance do not 

conclusively appear on the record. 

In accordance with Anders, we have reviewed the entire 

record in the case for meritorious issues and have found none. 

Accordingly, we affirm Smith’s conviction and sentence. This 

court requires that counsel inform Smith, in writing, of his 

right to petition the Supreme Court of the United States for 

further review. If Smith 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 Smith. 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