                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4107


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHAD STEVEN HUMPHRIES,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00087-MR-1)


Submitted:   November 16, 2011            Decided:   November 28, 2011


Before MOTZ, KING, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Randolph Marshall Lee, 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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           In December 2009, Chad Steven Humphries pled guilty to

conspiracy    to   commit    mail     fraud,       in    violation   of   18   U.S.C.

§ 1349 (2006), six counts of mail fraud and aiding and abetting,

in violation of 18 U.S.C. §§ 1341, 2 (2006), and six counts of

wire fraud and aiding and abetting, in violation of 18 U.S.C.

§§ 1343, 2 (2006).          At sentencing, the district court granted

the Government’s motion for an upward variance and sentenced

Humphries to 180 months of imprisonment.                   Humphries now appeals

the criminal judgment.

           Counsel    has     filed      a       brief   pursuant    to   Anders   v.

California, 386 U.S. 738 (1967), certifying that there are no

meritorious grounds for appeal.                   Despite being advised of his

right to do so, Humphries has not filed a pro se supplemental

brief.    For the reasons discussed below, we affirm.

           In the Anders brief, counsel questions whether trial

counsel provided ineffective assistance at sentencing.                         Claims

of   ineffective    assistance      of       counsel     are   not   cognizable    on

direct appeal unless the record conclusively establishes that

counsel   provided    ineffective            assistance.       United     States   v.

Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).                   We conclude that

any ineffective assistance of counsel claims are not ripe for

review at this time as there is no evidence in the record that

trial counsel was ineffective.

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              In conducting our Anders review, we have considered

the    reasonableness           of   the    district       court’s     upward   variance.

This court reviews a sentence imposed by a district court for

reasonableness,               applying     a     deferential          abuse-of-discretion

standard.          Gall v. United States, 552 U.S. 38, 46, 51 (2007).

This       court     first       examines        the      sentence     for    “significant

procedural         error,”        including          improper     calculation      of    the

Guidelines range, insufficient consideration of the 18 U.S.C.

§ 3553(a)      (2006)         factors,     and       inadequate      explanation   of    the

sentence      imposed.           Gall,     552     U.S.    at   51;    United   States    v.

Carter, 564 F.3d 325, 328 (4th Cir. 2009).                        This court also must

ensure      that        the     district       court      analyzed     any    nonfrivolous

arguments presented by the parties, sufficiently explained its

reasons       for        rejecting         those       arguments,       and     made     “an

individualized assessment based on the facts presented.”                                Gall,

552 U.S. at 49-50; Carter, 564 F.3d at 328.                            Because Humphries

argued      for     a    sentence        different      from    the     one   imposed,    he

properly preserved a claim of procedural sentencing error, and

       
       The Government has not sought to enforce the appeal waiver
in this case, which would have precluded review of Humphries’
sentence, and we will not raise the issue sua sponte.         See
United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005)
(citing United States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir.
2000)); see also United States v. Poindexter, 492 F.3d 263, 271
(4th Cir. 2007) (stating that, if Anders brief is filed in case
with appeal waiver, Government’s failure to respond “allow[s]
this court to perform the required Anders review”).


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we will reverse an abuse of discretion unless we conclude the

error was harmless.           See United States v. Lynn, 592 F.3d 572,

576, 578 (4th Cir. 2010).

            If        this    court      finds     a     sentence       procedurally

reasonable, it also must examine the substantive reasonableness

of the sentence under the totality of the circumstances.                           Gall,

552 U.S. at 51; see Carter, 564 F.3d at 328.                   In the case of an

above-Guidelines sentence, a reasonableness analysis will take

into account “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.”     United States v. Hernandez-Villanueva, 473 F.3d 118,

123 (4th Cir. 2007).               However, this consideration also “must

give due deference to the district court’s decision that the

§ 3553(a)    factors,        on    a   whole,    justify    the   extent      of    the

variance.”       Gall, 552 U.S. at 51.

            It is apparent from the record that the district court

considered both parties’ arguments and had a reasoned basis for

its variance from the Guidelines range.                       The district court

properly considered the § 3553(a) factors and explained that it

was   varying      from      the    Guidelines      range     because    a    within-

Guidelines       sentence     would     not      adequately    account       for    the

seriousness      of    Humphries’      offense     and   criminal   history,        nor

provide sufficient deterrence or just punishment for his crime.

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The court also specifically addressed defense counsel’s argument

for a within-Guidelines sentence and explained why it was not

adopting counsel’s request.                Under the circumstances, we are

satisfied    that     the    district      court   rendered      an   individualized

assessment      in   this    case    and   adequately      explained        the     upward

variance and conclude that the sentence is procedurally sound.

Additionally, we cannot conclude that the district court abused

its discretion in imposing a thirty-month upward variance, and

we hold that the sentence is substantively reasonable in light

of the facts of this case and the district court’s reasoned

analysis of the relevant § 3553(a) factors.

            In accordance with Anders, we have thoroughly reviewed

the record, including the transcript of the Fed. R. Crim. P. 11

hearing,     and     find    no     meritorious     issues      for       appeal.       We

therefore    affirm     the    district      court’s      judgment.         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   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 the client.                   We dispense with oral

argument because the facts and legal contentions are adequately



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expressed in the materials before the court and argument would

not aid the decisional process.


                                                      AFFIRMED




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