UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-4715

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALAN CLARK TOLLIVER,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at 

Martinsburg. Thomas S. Kleeh, Chief District Judge. (3:21-cr-00033-TSK-RWT-10)

Submitted: July 25, 2023 Decided: July 27, 2023

Before WYNN and HEYTENS, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Charles T. Berry, CHARLES T. BERRY, ESQUIRE, Kingmont, West 

Virginia, for Appellant. Lara Kay Omps-Botteicher, OFFICE OF THE UNITED STATES 

ATTORNEY, Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Alan Clark Tolliver pled guilty to possession with intent to distribute cocaine, in 

violation of 18 U.S.C. § 841(a)(1), (b)(1)(C). The district court sentenced Tolliver to 74 

months’ imprisonment and 3 years’ supervised release. On appeal, Tolliver’s counsel has 

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no 

meritorious issues for appeal but questioning whether Tolliver’s sentence is reasonable and 

whether his counsel in the district court rendered ineffective assistance. Although notified 

of his right to do so, Tolliver has not filed a pro se supplemental brief. The Government 

has declined to file a response brief. Finding no error, we affirm.

We review Tolliver’s sentence for reasonableness under a deferential abuse-ofdiscretion standard. United States v. Torres-Reyes, 952 F.3d 147, 151 (4th Cir. 2020). In 

conducting this review, we must first ensure that the sentence is procedurally reasonable, 

“consider[ing] whether the district court properly calculated the defendant’s advisory 

[Sentencing G]uidelines range, gave the parties an opportunity to argue for an appropriate 

sentence, considered the 18 U.S.C. § 3553(a) factors, and sufficiently explained the 

selected sentence.” Id. (internal quotation marks omitted). We then review the substantive 

reasonableness of the sentence; that is, “we examine the totality of the circumstances to see 

whether the sentencing court abused its discretion in concluding that the sentence it chose 

satisfied the standards set forth in § 3553(a).” United States v. Arbaugh, 951 F.3d 167, 176 

(4th Cir. 2020) (cleaned up). “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). “Such a presumption can only be rebutted by showing 

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that the sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” 

Id.

Our review of the record reveals that the district court accurately calculated 

Tolliver’s advisory Guidelines range, listened to Tolliver’s allocution, considered the 

parties’ arguments and the § 3553(a) factors, and adequately explained the chosen 

sentence. Accordingly, Tolliver’s sentence is procedurally reasonable. We further 

conclude that Tolliver’s within-Guidelines sentence is substantively reasonable in light of 

the totality of the circumstances.

With respect to Tolliver’s claim that his counsel performed deficiently in 

negotiating the plea agreement, 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). The present record 

does not conclusively demonstrate that counsel’s performance was ineffective. 

Accordingly, Tolliver’s claim is not cognizable on direct appeal.

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

found no meritorious grounds for appeal. We therefore affirm the district court’s judgment. 

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

Supreme Court of the United States for further review. If Tolliver 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 Tolliver. We dispense with oral argument because the 

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facts and legal contentions are adequately presented in the materials before this court and 

argument would not aid the decisional process.

AFFIRMED

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