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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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).
parties

that,

pursuant

to

The district court notified the

U.S.

Sentencing

Guidelines

Manual

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


upward from Lees 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.
Counsel

for

This appeal timely followed.


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

Lees

request for the substitution of counsel and the reasonableness


of Lees 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.
Corporan-Cuevas,

35

F.3d

953,

956

(4th

United States v.
Cir.

1994).

In

evaluating whether the trial court abused its discretion, this


court

considers:

(1)

the

timeliness
2

of

the

motion;

(2)

the

adequacy of the inquiry into the defendants complaint about his


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

that

it

resulted

in

total

preventing an adequate defense.


F.3d

151,

against

156
the

(4th

Cir.

district

of

communication

United States v. Reevey, 364

2004).
courts

administration of justice.

lack

These

factors

interest

in

are

balanced

the

orderly

Id. at 157.

Prior to his first sentencing hearing, Lee moved the


court to replace his second court-appointed attorney.
the

court

granted

the

motion

and

appointed

Lee

Although
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

Lees

motion.

The

district

court

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


beginning of Lees sentencing hearing.

Moreover, there was an

insufficient

which

basis

for

the

motion,

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 break-

down in communication between Lee and counsel.


3

Accordingly, we

affirm the district courts denial of Lees motion. 1

See id. at

156-57.
Counsel also asks this court to review the 336-month
sentence

the

district

court

imposed,

which

was

101

greater than the high end of Lees Guidelines range.

months

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).
both

the

This review requires appellate consideration of


procedural

and

substantive

Gall, 552 U.S. at 51.

sentence.

reasonableness

of

In determining the procedural

reasonableness of a sentence, this court considers whether the


district

court

Guidelines

properly

range,

calculated

considered

the

18

the

defendants

U.S.C.

advisory

3553(a)

(2006)

factors, analyzed any arguments presented by the parties, and


sufficiently explained the selected sentence.
of

whether

the

district

court

imposes

an

Id.
above,

Regardless
below,

or

Counsel suggests that Lees 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)).

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

including
range.

the

account
extent

the
of

totality
any

of

variance

the
from

circumstances,
the

Guidelines

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

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


In assessing a sentencing courts decision to depart
from

defendants

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.
States

v.

McNeill,

598

F.3d

161,

166

(4th

Cir.)

United

(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 courts 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 courts decision to depart upward from
Lees Guidelines range was informed by his extensive criminal
5

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.
crimes

were

leader,

and

relevant

The court further noted that Lees

increasingly
that

policy

he

violent,

had

that

several

statement

he

probation

specifically

was

known

violations.

contemplates

an

gang
The

upward

departure on the basis of the extent and nature of a defendants


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

to

the

background

commentary

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.
4A1.3,

p.s.,

comment.

(backgd).

This

was

precisely

USSG
the

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


courts

decision

to

depart

substantively unreasonable.

was

neither

procedurally

nor

See McNeill, 598 F.3d at 166.

We must next consider the reasonableness of the extent


of the departure in this case.
criminal
higher

history,

offense

the

levels,

Because Lee had a category VI

district
see

court

USSG

considered

incrementally

4A1.3(a)(4)(B),

p.s.,

and

offered salient reasons for rejecting the offense levels between


6

Lees total adjusted offense level (thirty-one) and the offense


level it deemed appropriate (thirty-five).
the

interim

offense

levels

did

not

The court found that

adequately

reflect

the

seriousness of Lees 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

4A1.3(a)(4)(B), p.s.;

departure

pursuant

to

USSG

see United States v. Dalton, 477 F.3d

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


sentencing courts obligation to state its basis for departing).
Further, we hold that the extent of the departure is reasonable
in light of the seriousness of Lees criminal history and his
alarming rate of recidivism.

See McNeill, 598 F.3d at 166-67.

For these reasons, we affirm Lees 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

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.

Criminal Procedure 11 in accepting Lees guilty plea, which was


knowing

and

voluntary.

courts judgment.

Accordingly,

we

affirm

the

district

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

believes

petition

be

filed,

but

counsel

that

such

petition would be frivolous, then counsel may move in this court


for leave to withdraw from representation.

Counsels motion

must state that a copy thereof was served on the client.


dispense

with

oral

argument

because

the

facts

and

We

legal

contentions are adequately presented in the materials before the


court and argument would not aid the decisional process.

AFFIRMED

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