UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4899

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANGEL FERNANDEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. Conrad, 

Jr., Chief District Judge. (3:10-cr-00131-RJC-1)

Submitted: October 30, 2012 Decided: November 8, 2012

Before WILKINSON and FLOYD, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

D. Baker McIntyre III, Charlotte, North Carolina, for Appellant. 

Amy Elizabeth Ray, Assistant United States Attorney, Asheville, 

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Angel Fernandez appeals his conviction and the 140-

month sentence imposed by the district court following his 

guilty plea to conspiracy to distribute and to possess with 

intent to distribute black tar heroin, in violation of 21 U.S.C. 

§ 846 (2006), and using and carrying a firearm during and in 

relation to a drug trafficking crime, in violation of 18 U.S.C. 

§ 924(c) (2006). Fernandez’s counsel has filed a brief pursuant 

to Anders v. California, 386 U.S. 738 (1967), asserting that, in 

his opinion, there are no meritorious issues for appeal, but 

questioning whether the sentence imposed was unreasonable and 

whether Fernandez was denied effective assistance of counsel in 

the district court. Fernandez was advised of his right to file 

a pro se supplemental brief but he did not file one.

We review a sentence under a deferential abuse-ofdiscretion standard. Gall v. United States, 552 U.S. 38, 51 

(2007). The first step in this review requires the court to 

ensure the district court committed no significant procedural 

error, such as improperly calculating the Sentencing Guidelines 

range, failing to consider the 18 U.S.C. § 3553(a) (2006) 

factors, or failing to adequately explain the sentence. United 

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). If the 

sentence is procedurally reasonable, we consider the substantive 

reasonableness of the sentence, taking into account the totality 
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of the circumstances. Gall, 552 U.S. at 51. A sentence within 

or below a properly calculated Guidelines range is accorded an 

appellate presumption of reasonableness. United States v. Susi, 

674 F.3d 278, 289 (4th Cir. 2012). We have reviewed the record 

and conclude that Fernandez’s below-Guidelines sentence is both 

procedurally and substantively reasonable. 

Turning to Fernandez’s contention that his counsel was 

ineffective, such claims are not cognizable on direct appeal 

unless the record conclusively establishes that counsel provided 

ineffective assistance. United States v. Benton, 523 F.3d 424, 

435 (4th Cir 2008). To allow for adequate development of the 

record, a defendant ordinarily should bring an ineffective 

assistance claim in a 28 U.S.C.A. § 2255 (West Supp. 2012) 

motion. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th 

Cir. 2010). Because we conclude that the record on appeal does 

not conclusively establish that Fernandez’s counsel was 

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

In accordance with Anders, we have reviewed the record 

and have found no meritorious issues for appeal. We therefore 

affirm Fernandez’s convictions and sentence. This court 

requires that counsel inform Fernandez, in writing, of his right 

to petition the Supreme Court of the United States for further 

review. If Fernandez requests that a petition be filed, but 

counsel believes that such a petition would be frivolous, 
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counsel may move in this court for leave to withdraw from 

representation. Counsel’s motion must state that a copy thereof 

was served on Fernandez. 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