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No. 09-4123
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:07-cr-00773-JFA-1)
Submitted:
KEENAN,
Decided:
Circuit
Judges,
July 9, 2010
and
HAMILTON,
PER CURIAM:
Trayone Maurice Burton appeals his conviction and 360
month
sentence
for
conspiracy
to
possess
with
intent
to
the
possession
with
intent
to
distribute
marijuana,
in
questioning
ineffective
and
whether
whether
Burtons
Burtons
first
sentence
was
attorney
was
substantively
in
calculating
the
drug
weight
for
which
he
was
the
jury
should
have
received
an
instruction
under
Pinkerton v. United States, 328 U.S. 640 (1946); and the judge
should have granted Burtons motion for a mistrial, based on a
witnesss
Government.
reference
to
Burtons
prior
cooperation
with
affirm.
2
the
We
Burtons
original
attorney
meaningful
that
attorney
failed
manner.
Burtons
interview
In
former
Burton
on
first
to
contends
represent
particular,
attorney
numerous
Mr.
Burtons
allowed
occasions
that
Burtons
Burton
in
counsel
alleges
the
Government
outside
of
any
to
counsels
presence, and Burton contended during the trial that his former
attorney
instructed
him
to
withhold
information
from
the
Government.
Claims of ineffective assistance of counsel are not
cognizable
on
direct
appeal
unless
the
record
conclusively
F.3d 387, 391 (4th Cir. 2003); United States v. Richardson, 195
F.3d
192,
198
development
(4th
of
the
Cir.
1999).
record,
To
generally
allow
claims
for
of
adequate
ineffective
not
Therefore,
conclusively
Burtons
establish
claims
of
ineffective
ineffective
assistance.
assistance
are
not
unreasonable,
his
acceptance
as
substantial
of
Burton
received
assistance
responsibility.
to
insufficient
the
Government
Regardless
3
credit
of
for
and
his
whether
the
determining
whether
the
procedural
district
court
reasonableness,
properly
must
then
consider
the
determine
18
whether
U.S.C.
the
3553(a)
Id.
we
first
calculated
the
court
failed
factors
and
to
any
selected
sentence
based
on
clearly
erroneous
sentence,
taking
into
account
the
totality
of
the
[g]uidelines range.
552 U.S. at 51).
We
calculated
afford
sentences
guidelines
range
that
fall
within
presumption
of
the
properly
reasonableness.
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks and
citation omitted).
Burtons
sentence
both
procedurally
and
substantively
reasonable.
Finally,
issues
in
Burtons
Anders
the
brief
counsel
at
raises
Burtons
three
additional
instruction.
First,
without merit.
Next, Burton contends that the jury should have been
instructed that it needed to make a finding as to the drug
quantity
specifically
applicable
to
him
in
accordance
with
However, the
actions
of
coconspirator,
313
(4th
Cir.
2005).
not
when
conspirator
is
Burton
was
charged
with
motion
discretion.
for
mistrial
for
abuse
5
of
See
United
In
however
determinations
the
by
instructions.
Cir.
if
jury
could
following
make
the
individual
courts
guilt
cautionary
1995).
After
reviewing
the
record,
we
find
that
the
was
incidental
and
not
repeatedly
referenced
by
found
no
meritorious
issues
on
appeal.
Accordingly,
we
If
this
court
for
leave
to
withdraw
from
representation.
before
the
court,
and
argument
would
not
aid
the
decisional
process.
AFFIRMED