                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 16-4283


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ROBERT LEE SMITH,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   William L. Osteen,
Jr., Chief District Judge. (1:15-cr-00166-WO-1)


Submitted:   November 29, 2016             Decided:   December 22, 2016


Before TRAXLER, DIAZ, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, Kathleen A. Gleason,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Terry Michael Meinecke, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Robert Lee Smith appeals from his conviction and 106-month

sentence entered pursuant to the jury verdict finding him guilty

of possession of a firearm by a convicted felon.                                   On appeal,

counsel has filed a brief under Anders v. California, 386 U.S.

738 (1967), concluding that there are no meritorious issues but

raising the issue of whether Smith’s sentence is substantively

unreasonable.       Smith filed a pro se supplemental brief stating

that he received ineffective assistance of trial and appellate

counsel.       We affirm.

     On appeal, counsel contends that the district court erred

by not giving sufficient weight to Smith’s age and cognitive

issues   related     to     alcohol      when       fashioning           his    sentence.     We

review     the    reasonableness          of       a    sentence          under     18    U.S.C.

§ 3553(a)      (2012)     for   abuse     of       discretion.            United    States    v.

Lymas, 781 F.3d 106, 111 (4th Cir. 2015) (citing Gall v. United

States, 552 U.S. 38, 41 (2007)).                        We presume that a sentence

within the Guidelines range is substantively reasonable.                                  United

States    v.     Susi,    674     F.3d   278,          289   (4th        Cir.    2012).       The

presumption can only be rebutted by showing that the sentence is

unreasonable       when     measured      against            the     §    3553(a)        factors.

United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).

     Based on the totality of the circumstances, we find that

Smith    failed    to     rebut    the    presumption              that    his    sentence    is

                                               2
reasonable when measured against the § 3553(a) factors, and we

must give due deference to the court’s reasoned and reasonable

decision   that       those       factors      justified        the   sentence     that     it

imposed.    See United States v. Diosdado-Star, 630 F.3d 359, 367

(4th Cir. 2011) (citation and quotation marks omitted).                                    The

district court specifically considered the factors relied upon

by Smith and balanced them against the other factors to arrive

at a sentence below that argued for by the Government.                             Further,

Smith provides no reason why his age and alcohol abuse should

outweigh his dangerous, repetitive criminal behavior.                              Thus, we

conclude   that       the    district       court    reasonably         rejected    Smith’s

request    for    a    lower       sentence        and        reasonably      determined     a

sentence   towards          the   lower     end     of    his    Guidelines      range     was

appropriate in this case.

     In his pro se supplemental brief, Smith contends that he

received ineffective assistance of trial and appellate counsel.

“It is well established that a defendant may raise a claim of

ineffective      assistance         of    counsel        in    the    first    instance     on

direct appeal if and only if it conclusively appears from the

record    that    counsel         did    not    provide         effective      assistance.”

United States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014).

Absent such a showing, ineffective assistance claims should be

raised in a motion brought pursuant to 28 U.S.C. § 2255 (2012),

in order to permit sufficient development of the record.                             United

                                               3
States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).                              We

find    that      Smith’s    claims     of    ineffective        assistance       do   not

conclusively appear on the record.

       In   accordance       with   Anders,        we   have   reviewed     the    entire

record in the case for meritorious issues and have found none.

Accordingly, we affirm Smith’s conviction and sentence.                                This

court requires that counsel inform Smith, in writing, of his

right to petition the Supreme Court of the United States for

further review.         If Smith 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 Smith.             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     the

decisional process.

                                                                                AFFIRMED




                                              4
