UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4485

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RYAN OSHAY LEE, a/k/a Bloody,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. James C. Dever III, 

District Judge. (7:07-cr-00079-D-1)

Submitted: September 2, 2010 Decided: October 15, 2010

Before NIEMEYER, GREGORY, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville, 

North Carolina, for Appellant. Jennifer P. May-Parker, Stephen 

Aubrey West, Assistant United States Attorneys, Raleigh, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Pursuant to the terms of his written plea agreement, 

Ryan Oshay Lee pleaded guilty to possession with intent to 

distribute five grams or more of crack cocaine, in violation of 

21 U.S.C. § 841(a)(1) (2006). The district court notified the 

parties that, pursuant to U.S. Sentencing Guidelines Manual

(“USSG”) § 4A1.3(a)(4)(B), p.s. (2007), it intended to depart 

upward from Lee’s advisory Guidelines range of 188-235 months’ 

imprisonment. See Fed. R. Crim. P. 32(h). After hearing 

extensive argument on the issue, the court sentenced Lee to 336 

months’ imprisonment. This appeal timely followed. 

Counsel for Lee has filed his brief pursuant to 

Anders v. California, 386 U.S. 738 (1967), stating that, in his 

view, there are no meritorious issues, but questioning whether 

the district court abused its discretion in denying Lee’s 

request for the substitution of counsel and the reasonableness 

of Lee’s sentence. Although advised of his right to file a pro 

se supplemental brief, Lee has not done so. For the following 

reasons, we affirm. 

We review the denial of a motion for the appointment 

of new counsel for an abuse of discretion. United States v. 

Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir. 1994). In 

evaluating whether the trial court abused its discretion, this 

court considers: (1) the timeliness of the motion; (2) the 
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adequacy of the inquiry into the defendant’s complaint about his 

attorney; and (3) whether the attorney/client conflict was so 

great that it resulted in a total lack of communication 

preventing an adequate defense. United States v. Reevey, 364 

F.3d 151, 156 (4th Cir. 2004). These factors are balanced 

against the district court’s “interest in the orderly 

administration of justice.” Id. at 157.

Prior to his first sentencing hearing, Lee moved the 

court to replace his second court-appointed attorney. Although 

the court granted the motion and appointed Lee his third 

attorney, the court warned Lee that he would not be permitted to 

postpone sentencing by firing his attorneys. When sentencing 

reconvened, Lee requested that the district court permit the 

withdrawal of his new attorney. The district court denied the 

motion. 

We conclude that the district court did not abuse its 

discretion in denying Lee’s motion. The district court 

concluded that the motion was untimely, as it was made at the 

beginning of Lee’s sentencing hearing. Moreover, there was an 

insufficient basis for the motion, which was predicated 

exclusively on the fact that counsel had conferred with Lee only 

once prior to sentencing and that counsel had not provided Lee

discovery materials. Finally, there was not a complete breakdown in communication between Lee and counsel. Accordingly, we 
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affirm the district court’s denial of Lee’s motion.1

Counsel also asks this court to review the 336-month 

sentence the district court imposed, which was 101 months 

greater than the high end of Lee’s Guidelines range. We review 

a sentence for reasonableness, applying a deferential abuse of 

discretion standard. Gall v. United States, 552 U.S. 38, 51 

(2007); see also United States v. Llamas, 599 F.3d 381, 387 (4th 

Cir. 2010). This review requires appellate consideration of 

both the procedural and substantive reasonableness of a 

sentence. Gall, 552 U.S. at 51. In determining the procedural 

reasonableness of a sentence, this court considers whether the 

district court properly calculated the defendant’s advisory 

Guidelines range, considered the 18 U.S.C. § 3553(a) (2006) 

factors, analyzed any arguments presented by the parties, and 

sufficiently explained the selected sentence. Id. “Regardless 

of whether the district court imposes an above, below, or 

 See id. at 

156-57.

 1 Counsel suggests that Lee’s request for appointment of new 

counsel implies that counsel was constitutionally deficient in 

his representation. We conclude, however, that it is not 

apparent on the face of the record that counsel was ineffective. 

Accordingly, we decline to consider this issue on direct appeal. 

See United States v. Benton, 523 F.3d 424, 435 (4th Cir.), cert. 

denied, 129 S. Ct. 490 (2008); United States v. Richardson, 195 

F.3d 192, 198 (4th Cir. 1999) (providing standard and noting 

that ineffective assistance of counsel claims generally should 

be raised by motion under 28 U.S.C.A. § 2255 (West Supp. 2010)).
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within-Guidelines sentence, it must place on the record an 

individualized assessment based on the particular facts of the 

case before it.” United States v. Carter, 564 F.3d 325, 330 

(4th Cir. 2009) (internal quotation marks omitted). This court 

next assesses the substantive reasonableness of the sentence, 

“taking into account the ‘totality of the circumstances, 

including the extent of any variance from the Guidelines 

range.’” United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 

2007) (quoting Gall, 552 U.S. at 51). 

In assessing a sentencing court’s decision to depart 

from a defendant’s Guidelines range, this court “consider[s] 

whether the sentencing court acted reasonably both with respect 

to its decision to impose such a sentence and with respect to 

the extent of the divergence from the sentencing range.” United 

States v. McNeill, 598 F.3d 161, 166 (4th Cir.) (internal 

quotation marks omitted), petition for cert. filed, __ U.S.L.W. 

__ (U.S. July 2, 2010) (No. 10-5258). Thus, this court will 

defer to the district court’s sentencing decision so long as it 

is reasonable, and we will not reverse a sentence simply because 

it “would not have been the choice of the appellate court.” 

United States v. Evans, 526 F.3d 155, 160 (4th Cir.), cert. 

denied, 129 S. Ct. 476 (2008). 

The district court’s decision to depart upward from

Lee’s Guidelines range was informed by his extensive criminal 
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history. Lee, who was twenty-one years old at the time he was 

sentenced, had twenty-seven prior convictions, eight of which 

were for felony offenses. The court further noted that Lee’s 

crimes were increasingly violent, that he was a known gang 

leader, and that he had several probation violations. The 

relevant policy statement specifically contemplates an upward 

departure on the basis of the extent and nature of a defendant’s 

criminal history even when, as Lee did here, the defendant has a 

category VI criminal history. See USSG § 4A1.3(a)(4)(B), p.s. 

In the background commentary to this policy statement, the 

Sentencing Commission recognized that an upward departure may be 

appropriate for “younger defendants (e.g., defendants in their 

early twenties or younger) who are more likely to have received 

repeated lenient treatment, . . . [as they] may actually pose a 

greater risk of serious recidivism than older defendants.” USSG 

§ 4A1.3, p.s., comment. (backg’d). This was precisely the 

scenario present in this case, and we hold that the district 

court’s decision to depart was neither procedurally nor 

substantively unreasonable. See McNeill, 598 F.3d at 166.

We must next consider the reasonableness of the extent 

of the departure in this case. Because Lee had a category VI 

criminal history, the district court considered incrementally 

higher offense levels, see USSG § 4A1.3(a)(4)(B), p.s., and 

offered salient reasons for rejecting the offense levels between 
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Lee’s total adjusted offense level (thirty-one) and the offense 

level it deemed appropriate (thirty-five). The court found that 

the interim offense levels did not adequately reflect the 

seriousness of Lee’s criminal history or the strong likelihood 

that, without adequate deterrence, he would continue to commit 

crimes, particularly violent crimes, upon his return to the 

community.

We conclude that the district court adhered to the 

proper procedure for a departure pursuant to USSG 

§ 4A1.3(a)(4)(B), p.s.; see United States v. Dalton, 477 F.3d 

195, 199 (4th Cir. 2007) (explaining incremental approach and 

sentencing court’s obligation to state its basis for departing). 

Further, we hold that the extent of the departure is reasonable 

in light of the seriousness of Lee’s criminal history and his 

alarming rate of recidivism. See McNeill, 598 F.3d at 166-67. 

For these reasons, we affirm Lee’s sentence.2

In accordance with Anders, we have reviewed the entire 

record for any meritorious issues and have found none. The 

district court complied with the mandates of Federal Rule of 

 2 Finally, Lee suggests the district court did not afford 

counsel a sufficient opportunity to be heard at sentencing. To 

the contrary, the record reveals that the district court gave

counsel ample opportunity both to argue against the upward 

departure and for a sentence at the low end of the postdeparture range. Accordingly, we reject this argument.
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Criminal Procedure 11 in accepting Lee’s guilty plea, which was 

knowing and voluntary. Accordingly, we affirm the district 

court’s judgment. This court requires that counsel 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