UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4773

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAMIEN ANTWON EVANS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Louise W. Flanagan, 

District Judge. (5:13-cr-00050-FL-1)

Submitted: April 29, 2015 Decided: May 12, 2015

Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Dhamian A. Blue, BLUE STEPHENS & FELLERS LLP, Raleigh, North 

Carolina, for Appellant. Jennifer P. May-Parker, Assistant 

United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Damien Antwon Evans pled guilty, pursuant to a plea 

agreement, to possession of a firearm and ammunition by a 

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012). 

The court sentenced Evans to 188 months’ imprisonment, the 

bottom of the Sentencing Guidelines range. Counsel has filed a 

brief pursuant to Anders v. California, 386 U.S. 738 (1967), 

stating that there are no meritorious grounds for appeal but 

raising as potential issues whether the court abused its 

discretion in denying Evans’ motion for substitute counsel and 

whether various aspects of Evans’ sentence were erroneous, 

including Evans’ designation as an armed career criminal, the 

application of U.S. Sentencing Guidelines Manual

§ 4B1.4(b)(3)(A) (2013), and the denial of the motion for 

downward variance and/or departure. Evans has filed a pro se 

supplemental brief, raising numerous issues, including whether 

sentencing counsel provided effective assistance and whether the 

court erred in sentencing him under the Armed Career Criminal 

Act (“ACCA”). We affirm.

We review a district court’s ruling on a motion to 

substitute counsel for abuse of discretion. United States v. 

Blackledge, 751 F.3d 188, 194 (4th Cir. 2014). Three factors 

are considered in reviewing the denial of such a motion: “(1) 

timeliness of the motion; (2) adequacy of the court’s inquiry 
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[into the factual basis of defendant’s dissatisfaction]; and (3) 

whether the attorney/client conflict was so great that it had 

resulted in total lack of communication preventing an adequate 

defense.” Id. (internal quotation marks omitted). These 

factors are balanced “against the district court’s interest in 

the orderly administration of justice.” United States v. Perez, 

661 F.3d 189, 191 (4th Cir. 2011) (internal quotation marks 

omitted). We conclude that the court did not abuse its 

discretion, since Evans’ motion was made after the start of the 

sentencing hearing, the court inquired into the reasons for 

Evans’ motion and also questioned counsel before denying the 

motion, and the record provides no evidence of an attorneyclient conflict hindering communication. 

Next, counsel and Evans contest whether Evans’ designation 

as an armed career criminal was proper. When considering 

whether a defendant was properly sentenced as an armed career 

criminal, we review the district court’s legal conclusions de 

novo and its factual findings for clear error. United States v. 

McDowell, 745 F.3d 115, 120 (4th Cir. 2014), cert. denied, 135 

S. Ct. 942 (2015). Because Evans raises this claim for the 

first time on appeal, it is reviewed for plain error. Henderson 

v. United States, 133 S. Ct. 1121, 1126-27 (2013). 

Under the ACCA, if a defendant is convicted of being a 

felon in possession of a firearm and has sustained at least 
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three prior convictions for violent felonies or serious drug 

offenses committed on occasions different from one another, the 

defendant is subject to an enhanced sentence. 18 U.S.C. 

§ 924(e)(1) (2012). Here, Evans pled guilty to being a felon in 

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),

and his presentence report noted that he previously pled guilty 

to four common law robbery charges, which occurred on different 

occasions from one another and each resulted in a sentence of 

more than a year. These robbery counts constitute violent 

felonies under the ACCA. 18 U.S.C. § 924(e)(2)(B)(ii); see also

United States v. Carmichael, 408 F. App’x 769, 770-71 (4th Cir. 

2011) (No. 09-4963) (concluding that common law robbery under 

North Carolina law is crime of violence). Accordingly, we 

conclude that the district court correctly sentenced Evans as an 

armed career criminal. 

Next, counsel questions whether the district court erred in 

applying an offense level of 34 after finding by a preponderance 

of the evidence that Evans possessed the firearm in connection 

with a crime of violence. See USSG § 4B1.4(b)(3)(A). Here, the 

sentencing court concluded that Evans possessed the firearm and 

ammunition in connection with the state offense of feloniously 

fleeing to elude arrest. See N.C. Gen. Stat. § 20-141.5(a)-(b) 

(2013). In determining that the offense was a felony rather 

than a misdemeanor under North Carolina law, the sentencing 
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court was required to find the presence of two or more 

aggravating factors enumerated in the statute. Id. § 20-

141.5(b) Based on evidence presented at sentencing, the court 

found that at least two of the factors, reckless driving and 

driving with his license revoked, § 20-141.5(b)(3), (5), were 

present. Evans offered no evidence to dispute these two 

factors. Thus, the court’s factual findings that Evans was 

driving recklessly and without a license were supported by a 

preponderance of the evidence and therefore were not clearly 

erroneous. See United States v. White, 771 F.3d 225, 235 (4th 

Cir. 2014) (stating standard of review), cert. denied, __ U.S. 

__, 83 U.S.L.W. 3743 (U.S. Mar. 23, 2015) (No. 14-8442).

We review de novo the court’s legal conclusion that Evans 

possessed a firearm in connection with a crime of violence. Id. 

For purposes of USSG § 4B1.4(b)(3)(A), a crime of violence is 

“any offense under federal or state law, punishable by 

imprisonment for a term exceeding one year, that . . . involves 

conduct that presents a serious potential risk of physical 

injury to another.” USSG § 4B1.2(a)(2). Coupled with the two 

aggravating factors, Evans’ actions constituted the state 

criminal offense of felonious fleeing to elude arrest under N.C. 

Gen. Stat. § 20-141.5(a)-(b). The Supreme Court has previously 

stated that “[f]elony vehicle flight is a violent felony for 

purposes of [the] ACCA.” Sykes v. United States, 131 S. Ct. 
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2267, 2277 (2011); see also United States v. Scott, 521 F. App’x 

112, 114 (4th Cir. 2013) (per curiam) (holding that fleeing to 

elude arrest under N.C. Gen. Stat. § 20-141.5 constitutes crime 

of violence for purposes of USSG § 4B1.4(b)(3)(A)). Therefore, 

the district court correctly concluded that Evans committed a 

crime of violence in connection with his possession of a 

firearm, meriting application of an offense level of 34 as 

provided by § 4B1.4(b)(3)(A).

Finally, counsel questions whether Evans’ sentence of 188 

months’ imprisonment was reasonable, focusing specifically on 

whether the court erred when it denied the motion for downward 

departure and/or variance. We apply “an abuse-of-discretion 

standard” when reviewing a sentence for reasonableness. Gall v. 

United States, 552 U.S. 38, 51 (2007). We first examine the 

district court’s sentence for “significant procedural error,” 

including “failing to calculate (or improperly calculating) the 

Guidelines range, . . . failing to consider the [18 U.S.C.] 

§ 3553(a) factors, selecting a sentence based on clearly 

erroneous facts, or failing to adequately explain the chosen 

sentence.” Id.

If we find no significant procedural error, we examine the 

substantive reasonableness of a sentence under “the totality of 

the circumstances.” Id. The sentence imposed must be 

“sufficient, but not greater than necessary,” to satisfy the 
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goals of sentencing. 18 U.S.C. § 3553(a). We presume on appeal 

that a within-Guidelines sentence is substantively reasonable. 

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

denied, 135 S. Ct. 421 (2014). The defendant can rebut that 

presumption only “by showing that the sentence is unreasonable 

when measured against the 18 U.S.C. § 3553(a) factors.” Id.

We conclude that the district court satisfied the 

procedural requirements by correctly calculating Evans’ 

Guidelines range; considering the parties’ arguments, Evans’ 

allocution, and the § 3553(a) factors; and providing an 

individualized assessment fully grounded in those factors. As 

to substantive reasonableness, we conclude that Evans has failed 

to rebut the presumption of reasonableness accorded to his 

within-Guidelines sentence. As indicated by the court’s 

statements on record, the court found that the totality of the 

circumstances warranted a sentence at the bottom of the 

Guidelines range but not a downward variance or departure. Such 

a determination is within the discretion of the sentencing court 

and is not an abuse of discretion. 

Evans also contends that sentencing counsel’s assistance 

was ineffective. Unless an attorney’s ineffectiveness 

conclusively appears on the face of the record, ineffective 

assistance claims are not generally addressed on direct appeal. 

United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008); see
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United States v. Smith, 640 F.3d 580, 587 (4th Cir. 2011) 

(stating that ineffective assistance is conclusively established 

where appellate court “need not look beyond the trial court 

record brought . . . in a direct appeal”); see also Strickland 

v. Washington, 466 U.S. 668, 687 (1984) (providing standard for 

ineffective-assistance claims). Instead, such 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 

States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). 

Because the record does not conclusively establish ineffective 

assistance of counsel, we conclude that these claims should be 

raised, if at all, in a § 2255 motion. 

We have reviewed the record and the other arguments Evans 

raises in his pro se supplemental brief and conclude that they 

are without merit. We therefore affirm the district court’s 

judgment. This court requires that counsel inform Evans, in 

writing, of the right to petition the Supreme Court of the 

United States for further review. If Evans 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 Evans.
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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