                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-4553


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

JAMES ANTONIO LANGSTON,

                    Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Robert J. Conrad, Jr., District Judge. (3:15-cr-00271-RJC-1)


Submitted: April 7, 2017                                          Decided: April 13, 2017


Before AGEE, KEENAN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Matthew G. Pruden, TIN, FULTON, WALKER & OWEN, PLLC, 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Unpublished opinions are not binding precedent in this circuit.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:

       James Antonio Langston appeals his conviction and 120-month sentence imposed

following his guilty plea to conspiracy to distribute and possess with intent to distribute

500 grams or more of cocaine, in violation of 21 U.S.C. § 846 (2012). On appeal,

Langston’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), stating that there are no meritorious issues for appeal but questioning whether the

district court erred in denying his request for a variance on the ground that his career

offender enhancement under the Sentencing Guidelines overstated his criminal history

and resulted in an unwarranted sentencing disparity.        Langston has filed a pro se

supplemental brief, raising claims of ineffective assistance of counsel and prosecutorial

misconduct. The Government has declined to file a response brief. For the reasons that

follow, we affirm.

       We review a sentence for reasonableness, applying a deferential abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). We first must ensure

that the district court committed no significant procedural error, such as improper

calculation of the Guidelines range, inadequate consideration of the 18 U.S.C. § 3553(a)

(2012) factors, or insufficient explanation of the sentence imposed. United States v.

Martinovich, 810 F.3d 232, 242 (4th Cir. 2016).          In considering challenges to a

Guidelines enhancement, we “review factual findings for clear error and legal

conclusions de novo.” United States v. Adepoju, 756 F.3d 250, 256 (4th Cir. 2014).

      If we find no significant procedural error, we also must consider the substantive

reasonableness of the sentence. United States v. Diosdado-Star, 630 F.3d 359, 363 (4th

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Cir. 2011). A sentence must be “sufficient, but not greater than necessary,” to satisfy the

statutory purposes of sentencing. 18 U.S.C. § 3553(a). We presume that a sentence

below a properly calculated Guidelines range is substantively reasonable. United States

v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). Langston bears the burden to rebut this

presumption “by showing that the sentence is unreasonable when measured against the

18 U.S.C. § 3553(a) factors.” Id.

       On appeal, Langston’s counsel first asserts that the court should not have relied

upon Langston’s 2012 North Carolina convictions to support his career offender

enhancement because those offenses were not punishable by more than one year of

imprisonment, despite the fact that he was actually sentenced to 8 to 19 months’

imprisonment for those offenses. Even assuming, without deciding, that Langston’s

assertion is correct, the district court properly determined that this objection had no

impact on the propriety of Langston’s career offender enhancement, as he had two

remaining predicate convictions to support the enhancement.         See U.S. Sentencing

Guidelines Manual §§ 4A1.2(e)(1), 4B1.1, 4B1.2(b), (c) (2015). Further, the district

court acted well within its discretion in considering Langston’s 2012 convictions when

evaluating his request for a downward variance, particularly in light of their similarity

both to his more remote career offender predicates and to the conduct underlying his

federal conviction.

       Counsel also challenges the substantive reasonableness of Langston’s sentence,

reiterating arguments raised before the sentencing court in support of a downward

variance. Specifically, counsel argues that Langston’s Guidelines range, as established

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by his career offender enhancement, overrepresents his criminal history and creates an

unwarranted sentencing disparity. Counsel observes that Langston’s predicates were

committed in 1993 and 1994, at a young age, and close in time to one another. Langston

committed each of these offenses before being sentenced for any of them, counsel notes,

and his sentences ran concurrent to one another. Counsel also argues that, because

Langston committed these offenses in South Carolina, the sentences he received were

longer than they would have been if he had committed the same offenses in North

Carolina; as a result, they were classifiable as career offender predicates because the

lengthy sentences extended into the 15-year period preceding his underlying offense

conduct. See USSG §§ 4A1.2(e)(1), 4B1.2 cmt. n.3. Due to this discrepancy in state

sentencing, counsel argues, Langston’s career offender enhancement created an

unjustified disparity compared to similarly situated offenders.

       While we acknowledge that Langston’s arguments may have provided

nonfrivolous bases upon which the district court could have relied to vary downward, we

do not find these arguments so compelling as to rebut the presumption of substantive

reasonableness accorded Langston’s below-Guidelines sentence. See Louthian, 756 F.3d

at 306. As the district court observed, Langston’s North Carolina convictions revealed a

continued pattern of drug trafficking conduct connecting his remote South Carolina

predicates and his federal offense. Langston’s involvement in drug activity during this

more proximate period significantly undermined his argument that the career offender

enhancement overestimated his criminal history and likelihood of future involvement in

drug offenses. It also undercut Langston’s implicit assertion that his predicate offenses,

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committed at a young age and before he had been sentenced to any prison term for his

crimes, were not representative of his more recent development and conduct. As the

district court observed, the 25-year sentences Langston received in South Carolina state

court should have deterred him from further drug activity, yet he continued to offend in

2011 and during the conduct underlying his federal offense. Langston also was sentenced

significantly below the Guidelines range established by his career offender enhancement,

due in part to the Government’s sentencing arguments and agreement to withdraw his 21

U.S.C. § 851 (2012) information. In view of these factors, we discern no abuse of

discretion in the court’s decision not to vary further below the Guidelines range.

         Turning to the arguments in Langston’s pro se supplemental brief, Langston

alleges both ineffective assistance of trial counsel and prosecutorial misconduct. “Unless

an attorney’s ineffectiveness conclusively appears on the face of the record, such claims

are not addressed on direct appeal.” United States v. Faulls, 821 F.3d 502, 507–08 (4th

Cir. 2016). Because no such ineffective assistance conclusively appears on the record

before us, we decline to consider Langston’s ineffective assistance of counsel claims at

this juncture. Instead, Langston’s claims should be raised, if at all, in a 28 U.S.C. § 2255

(2012) motion. See id. at 508; United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir.

2010).

         Because Langston did not raise his prosecutorial misconduct claims in the district

court, we review these issues for plain error. United States v. Alerre, 430 F.3d 681, 689

(4th Cir. 2005). To prevail on his claims of prosecutorial misconduct, Langston must

demonstrate both misconduct by the prosecutor and resulting prejudice. United States v.

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Caro, 597 F.3d 608, 624–25 (4th Cir. 2010). As our review of the available record

reveals neither, Langston’s claims are unavailing.

       In accordance with Anders, we have reviewed the entire record in this case and

have found no meritorious issues for appeal. We therefore deny Langston’s pro se

motion for abeyance and affirm Langston’s criminal judgment. This court requires that

counsel inform Langston, in writing, of the right to petition the Supreme Court of the

United States for further review. If Langston 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 Langston.

       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




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