                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 19-4439


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

TIMOTHY TYRONE BYERS, JR.,

                     Defendant - Appellant.



Appeal from the United States District Court for the Northern District of West Virginia, at
Martinsburg. Gina M. Groh, Chief District Judge. (3:18-cr-00062-GMG-RWT-1)


Submitted: January 15, 2020                                       Decided: February 4, 2020


Before NIEMEYER, RICHARDSON, and RUSHING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kristen M. Leddy, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Kimberley DeAnne
Crockett, Assistant United States Attorney, Jeffrey Akira Finucane, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Timothy Tyrone Byers, Jr., pled guilty pursuant to a plea agreement to bank robbery,

in violation of 18 U.S.C. § 2113(a) (2018), and was sentenced to 240 months in prison.

Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), indicating

that she has identified no meritorious issues for appeal but identifying as potential issues

for review whether: (1) Byers’ sentence is reasonable; and (2) the district court had

jurisdiction over Byers’ prosecution. Counsel nonetheless concedes that Byers’ sentence

is reasonable and indicates that, in any event, Byers’ appeal is barred by the appellate

waiver in his plea agreement. 1 Byers has filed a pro se supplemental brief in which he: (1)

challenges the district court’s jurisdiction over his prosecution; (2) complains that he was

forced to plead guilty because his attorney refused to challenge the court’s jurisdiction; and

(3) asserts that the district court erroneously denied his motion for a new attorney

predicated on counsel’s failure to challenge the district court’s jurisdiction. Finding no

error, we affirm.

       We first reject counsel’s and Byers’ argument that the district court lacked

jurisdiction over the bank robbery of a federally insured bank located within the Northern

District of West Virginia; counsel provides no argument in support of this assignment of

error and rather correctly concedes the district court had original jurisdiction over Byers’


       1
         The Government has indicated that it does not intend to file a response brief and
this court will not sua sponte raise the appellate waiver. Cf. United States v. Poindexter,
492 F.3d 263, 271 (4th Cir. 2007) (recognizing that the Government may file a responsive
brief raising the appellate waiver issue or do nothing and allow this court to perform the
Anders review).

                                              2
prosecution. See 18 U.S.C. § 3231 (2018) (“The district courts of the United States shall

have original jurisdiction, exclusive of the courts of the States, of all offenses against the

laws of the United States.”).

       We also reject Byers’ suggestion that his guilty plea was involuntary because, since

his attorney refused to challenge the district court’s jurisdiction over his case, he was forced

to plead guilty.    After reviewing the plea colloquy in accordance with this court’s

obligations under Anders, and considering the positive solemn declarations Byers made

before the magistrate judge regarding his attorney’s representation, we discern no plain

error with regard to Byers’ conviction. See United States v. Martinez, 277 F.3d 517, 525-

27 (4th Cir. 2002); see also Blackledge v. Allison, 431 U.S. 63, 74 (1977) (recognizing that

“[s]olemn declarations in open court carry a strong presumption of verity” and that

“subsequent presentation of conclusory allegations unsupported by specifics is subject to

summary dismissal, as are contentions that in the face of the record are wholly incredible”).

       Next, we reject Byers’ argument that the district court erred when it denied his

motion for a new attorney predicated on counsel’s refusal to challenge the district court’s

jurisdiction over his prosecution. We review a district court’s ruling on a motion to

substitute counsel for abuse of discretion. United States v. Reevey, 364 F.3d 151, 156 (4th

Cir. 2004).

       It is true that courts have previously recognized a constructive denial of the right to

counsel when, for instance, a complete breakdown of attorney-client communications

precluded effective representation, see Daniels v. Woodford, 428 F.3d 1181, 1197-98 (9th

Cir. 2005) (cited favorably by United States v. Smith, 640 F.3d 580, 590 (4th Cir. 2011)),

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or an attorney completely failed to “subject the prosecution’s case to meaningful

adversarial testing[.]” United States v. Cronic, 466 U.S. 648, 659 (1984). Whether

substitute counsel should be appointed, however, is within the sound discretion of the trial

court. United States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988), abrogated on other

grounds as recognized in, United States v. Ductan, 800 F.3d 642, 652 (4th Cir. 2015).

       The record in this case establishes that Byers was neither completely nor

constructively denied his right to counsel; Byers was represented at all stages of the

proceedings below and a review of the record establishes that defense counsel advocated

vigorously on Byers’ behalf during the criminal proceedings. Moreover, the reason for

Byers’ request for new counsel—because his attorney at the time refused to challenge the

district court’s jurisdiction over Byers’ prosecution—was meritless. See supra. Thus, new

counsel likely would have refused the same requests, thereby affording Byers no relief.

We thus discern no abuse of discretion in the district court’s decision to deny Byers’ motion

for new counsel. 2




       2
         To the extent Byers is attempting to raise an ineffective assistance of counsel claim
in his pro se brief, ineffective assistance does not conclusively appear on the record and,
thus, we will not entertain this claim on this appeal. See United States v. Benton, 523 F.3d
424, 435 (4th Cir. 2008) (holding that an ineffective assistance of counsel claim is not
cognizable on direct appeal “unless it conclusively appears from the record that defense
counsel did not provide effective representation” (internal quotation marks omitted)).
Rather, any ineffective assistance claim would be more appropriately raised by Byers in a
28 U.S.C. § 2255 (2018) motion. See United States v. DeFusco, 949 F.2d 114, 120 (4th
Cir. 1991) (“[I]t would be unfair to adjudicate [an ineffective assistance claim] without any
statement from counsel on the record.”). We express no opinion as to the merits of such a
claim.

                                              4
       We next review Byers’ sentence for reasonableness, applying “a deferential abuse-

of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This review requires

consideration of both the procedural and substantive reasonableness of the sentence.

United States v. Lymas, 781 F.3d 106, 111 (4th Cir. 2015). In determining procedural

reasonableness, we consider whether the district court properly calculated the defendant’s

advisory Sentencing Guidelines range, gave the parties an opportunity to argue for an

appropriate sentence, considered the 18 U.S.C. § 3553(a) (2018) sentencing factors, and

sufficiently explained the selected sentence. Id. at 111-12. After determining that the

sentence is procedurally reasonable, we consider the substantive reasonableness of the

sentence, “tak[ing] into account the totality of the circumstances[.]” Gall, 552 U.S. at 51.

The district court “has flexibility in fashioning a sentence outside of the Guidelines range,”

and need only “‘set forth enough to satisfy the appellate court that it has considered the

parties’ arguments and has a reasoned basis’” for its decision. United States v. Diosdado-

Star, 630 F.3d 359, 364 (4th Cir. 2011) (quoting Rita v. United States, 551 U.S. 338, 356

(2007)) (brackets omitted).

       Our review of the record reveals no procedural or substantive error. The district

court accurately calculated Byers’ Guidelines range, afforded the parties an opportunity to

argue regarding an appropriate sentence and gave Byers the opportunity to allocute, and

imposed an above-Guidelines range sentence while thoroughly explaining the reasons for

the imposed sentence and why the court rejected counsel’s argument for a below-

Guidelines range sentence. And because the district court identified multiple reasons for

its variance, all of which were based on the § 3553(a) factors and related to the particular

                                              5
facts of Byers’ case, we find that the variance is reasonable. See United States v. King, 673

F.3d 274, 284 (4th Cir. 2012) (concluding that upward variant sentence was reasonable as

it was adequately supported by reference to those § 3553(a) factors that “the court

determined required the sentence ultimately imposed”); Diosdado-Star, 630 F.3d at 366-

67 (holding that an upward variant sentence six years longer than the Guidelines range was

substantively reasonable because the district court expressly relied on several § 3553(a)

factors to support the variance).

       In accordance with Anders, we have reviewed the entire record and have found no

meritorious grounds for appeal. We therefore affirm the district court’s judgment. This

court requires that counsel inform Byers, in writing, of his right to petition the Supreme

Court of the United States for further review. If Byers requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then counsel may move this court

for leave to withdraw from representation. Counsel’s motion must state that a copy thereof

was served on Byers. 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 in the decisional process.

                                                                                 AFFIRMED




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