     Case: 15-30071      Document: 00513276724         Page: 1    Date Filed: 11/18/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit

                                                                                  FILED
                                                                            November 18, 2015
                                    No. 15-30071
                                                                               Lyle W. Cayce
                                  Summary Calendar                                  Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

STEVEN DEEM,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:13-CR-149-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Steven Deem pleaded guilty, pursuant to a written agreement, to
distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2). After
he stood convicted but before sentencing, Deem, who was represented by the
Federal Public Defender, moved pro se to withdraw his guilty plea and to
proceed pro se. Following a hearing, the district court denied Deem’s motions
and sentenced him above the advisory guidelines sentencing range to 240


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 15-30071     Document: 00513276724     Page: 2   Date Filed: 11/18/2015


                                  No. 15-30071

months of imprisonment and a lifetime term of supervised release.            In a
previous opinion, we concluded that Deem had waived any challenge to the
denial of his motion to withdraw his guilty plea, and we affirmed Deem’s
conviction. United States v. Deem, 582 F. App’x 553, 554 (5th Cir. 2014). We
vacated his sentence, however, and remanded the case to allow Deem an
opportunity to represent himself on resentencing. Id. Deem returned to the
district court and filed a new pro se motion to withdraw his guilty plea, which
the district court considered and denied.         Deem proceeded pro se at
resentencing, and he was resentenced to 240 months of imprisonment and a
lifetime term of supervised release. Still proceeding pro se, Deem now appeals.
      Arguing that the Government did not assert sufficient justification to
receive an extension of time for filing its brief and that its brief was untimely,
Deem moves to strike the Government’s brief.           That motion is denied.
Although Deem is proceeding pro se, he moves for the appointment of standby
counsel to assist him on appeal. The rules of this court do not provide for such
an appointment, see FIFTH CIRCUIT PLAN FOR REPRESENTATION ON APPEAL
UNDER THE CRIMINAL JUSTICE ACT,      §§ 3, 5, and the motion is therefore denied.
      Deem argues that evidence considered by the district court was obtained
through the use of an invalid search warrant. He also argues that the district
court erred each time that it denied his motions to withdraw his guilty plea
and that his guilty plea was unknowing and involuntary because it was
induced by promises from the district court that Deem would be sentenced to
pay a fine only. Each of these issues goes to the validity of Deem’s guilty plea
and conviction. As Deem’s conviction was affirmed in our prior decision, the
validity of his plea and conviction was not subject to reexamination by the
district court on remand; nor will we reexamine it in this subsequent appeal.
See United States v. Teel, 691 F.3d 578, 583 (5th Cir. 2012).



                                        2
    Case: 15-30071     Document: 00513276724     Page: 3   Date Filed: 11/18/2015


                                  No. 15-30071

      Deem had a prior Texas conviction for aggravated sexual assault of a
child that increased the statutory minimum sentence he faced from 60 months
to 180 months of imprisonment. See § 2252A(b)(1). He does not contest the
fact of the prior conviction, but he challenges the constitutional validity of the
prior conviction. Deem does not state whether he was represented by counsel
in connection with that prior conviction, but the state court documents
contained in the record indicate that he was counseled. We will not “entertain
collateral attacks on prior state convictions made during federal sentencing
proceedings when, as here, the defendant does not allege that the prior
conviction was uncounseled.” United States v. Longstreet, 603 F.3d 273, 277
(5th Cir. 2010); see Custis v. United States, 511 U.S. 485, 495-97 (1994).
      The district court’s guidelines calculations called for an advisory
imprisonment range of 108 to 135 months, and that range did not award Deem
credit for acceptance of responsibility in light of his attempt to withdraw his
guilty plea. Because of the statutory minimum sentence, however, Deem’s
guidelines sentencing range became 180 months. U.S.S.G. § 5G1.1(b). Deem
contends that the district court’s decision to vary upward to a sentence of 240
months was an abuse of discretion because that sentence is greater than
necessary to achieve the goals of sentencing set forth at 18 U.S.C. § 3553(a).
More specifically, he asserts that his failure to accept responsibility for his
actions and his prior state conviction had already been accounted for in the
guidelines calculations and by the triggering of the enhanced statutory
minimum sentence.
      Because Deem did not object to his sentence on these grounds in the
district court, our review is only for plain error.        See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). In reviewing an
above-guidelines sentence for reasonableness, we look to whether the sentence



                                        3
    Case: 15-30071     Document: 00513276724       Page: 4   Date Filed: 11/18/2015


                                  No. 15-30071

unreasonably fails to reflect the § 3553(a) sentencing factors. United States v.
Smith, 440 F.3d 704, 707-08 (5th Cir. 2006). The district court explained its
choice of sentence at great length, expressly stating that it had considered the
§ 3553(a) factors and discussing Deem’s personal characteristics, history, and
circumstances with respect to those factors. The sentencing judge is in a
superior position to weigh the sentencing factors and choose an appropriate
sentence, and we must give that determination due deference. Gall v. United
States, 552 U.S. 38, 51-52 (2007). Deem’s arguments in this court amount to a
disagreement with the district court’s weighing of the sentencing factors and
its choice of an adequate sentence. We may not, however, substitute our
judgment for that of the district court. Id. at 51. We conclude that, under a
totality of the circumstances, neither the decision to vary upward nor the
extent of the upward variance was unreasonable. United States v. Brantley,
537 F.3d 347, 348-50 (5th Cir. 2008). We therefore affirm the sentence imposed
by the district court on resentencing.
      We note that Deem has made numerous and varied allegations that he
received ineffective assistance of counsel in the district court and in connection
with his prior appeal. A motion filed under 28 U.S.C. § 2255 is the preferred
method for raising such claims. Massaro v. United States, 538 U.S. 500, 503-
09 (2003). The record is not sufficiently developed to allow us to fairly evaluate
Deem’s ineffective-assistance claims at this time. Accordingly, we decline to
consider them on direct appeal without prejudice to whatever right Deem has
to assert them on collateral review. United States v. Isgar, 739 F.3d 829, 841
(5th Cir.), cert. denied, 135 S. Ct. 123 (2014).
      SENTENCE AFFIRMED; MOTIONS DENIED.




                                         4
