                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4963


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WILLIAM CLIFTON STACEY, SR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:12-cr-00122-TDS-1)


Submitted:   June 27, 2014                     Decided:     July 9, 2014


Before NIEMEYER   and   KING,   Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Craig M. Cooley, COOLEY         LAW OFFICE, PLLC,         Durham, North
Carolina, for Appellant.        Frank Joseph Chut,        Jr., Assistant
United   States Attorney,       Greensboro,  North        Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            William Clifton Stacey, Sr., pled guilty in separate

proceedings to one count of mail fraud and one count of making

false   statements.          The    district         court      sentenced     him    to     63

months’   imprisonment.            Stacey      appeals.         His   counsel       filed    a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

asserting that there are no meritorious grounds for appeal, but

questioning whether Stacey was competent to aid in his defense,

whether his guilty pleas were valid, and whether the sentence

imposed is reasonable.          Stacey filed a pro se supplemental brief

asserting   that     he   was      not    competent        to   aid   in    his    defense,

challenging    the    adequacy           of   the       Government’s       evidence,      and

asserting   that     trial    counsel         provided      ineffective       assistance.

We affirm Stacey’s convictions and sentence.

            Because Stacey did not contest the Fed. R. Crim. P. 11

proceedings in the district court, we review his challenge to

the validity of his pleas for plain error.                       See Fed. R. Crim. P.

52(b); United States v. Vonn, 535 U.S. 55, 59 (2002); United

States v. Martinez, 277 F.3d 517, 524-26 (4th Cir. 2002).                                   We

have reviewed the record and conclude that the district court

fully complied with the requirements of Rule 11 in accepting

Stacey’s guilty pleas and committed no plain error.

            Stacey    asserts        that         the    district     court       erred     in

finding him competent.             Prior to the Rule 11 hearings, Stacey

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underwent a pre-trial competency evaluation.                   In light of the

results     of    that     evaluation    and    counsel’s     observations      and

interaction with Stacey, counsel did not request a competency

hearing.       Moreover, during the plea hearings, the district court

expressly      found     Stacey   competent     to   enter   the   guilty    pleas.

This finding was supported by Stacey’s responses to the court’s

inquiries and the fact that he was able to provide explanations

of his medical conditions and details of the offense conduct.

We find no clear error in the court’s determination that Stacey

possessed a “rational as well as factual understanding of the

proceedings against him,” Dusky v. United States, 362 U.S. 402

(1960), and that he was able to assist counsel with his defense.

See Godinez v. Moran, 509 U.S. 389, 402 (1993).

            We review Stacey’s sentence for reasonableness under a

“deferential       abuse-of-discretion         standard.”      Gall    v.    United

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

within    or     below    a   properly   calculated      Guidelines     range    is

substantively reasonable.           United States v. Susi, 674 F.3d 278,

289 (4th Cir. 2012).

            Stacey challenges the sophisticated means enhancement

imposed    by    the     district   court.      In   determining      that   Stacey

employed sophisticated means in his mail fraud scheme, the court

noted     that    Stacey      assisted   Curetech      Industries,      Inc.,   in

preparing a brochure and video to promote the benefits of this

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drug compound that he allegedly invented.                  He gave the materials

to    potential   investors     and    also       provided    pills,       creams,    and

lotions    that   purportedly        contained       the     new   drug,      which    he

claimed —      based    on   fabricated         clinical   studies     —    could     cure

diabetes and cancer.          The court found that the product samples,

the    professional-looking         promotional         materials,     and     Stacey’s

false representations that he was a scientist, supported the

sophisticated means enhancement.                  We find no clear error in the

imposition of this enhancement.                 See United States v. Noel, 502

F.    App’x   284,     290   (4th    Cir.       2012)    (providing        standard    of

review), cert denied, 134 S. Ct. 366 (2013); United States v.

Jimwright, 683 F.3d 471, 486 (4th Cir. 2012) (providing that

court considers “cumulative impact of the criminal conduct” to

determine whether scheme is “sophisticated”), cert. denied, 133

S. Ct. 843 (2013).

              Stacey also contends that the district court abused

its discretion by denying his request for a downward departure

based on his numerous physical, psychological, and neurological

ailments.      A district court’s decision not to depart from the

Sentencing      Guidelines     is     not       reviewable     unless       the     court

mistakenly believed that it lacked authority to depart.                           United

States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008); United

States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992).                         The district

court expressly noted Stacey’s medical needs, acknowledged its

                                            4
authority to depart, but declined to do so.                             Because the court

was under no misperception as to its authority, its refusal to

depart is not subject to appellate review.                          See United States v.

Edwards, 188 F.3d 230, 238 (4th Cir. 1999).

            Stacey       also   contends           that    the     63-month     sentence     is

unreasonable because of his numerous medical, psychological and

neurological ailments.            We note that the district court properly

calculated Stacey’s advisory Guidelines range and heard argument

from counsel and allocution from Stacey.                           The court considered

the   18   U.S.C.    §    3553(a)       (2012)        factors,        explaining      that    a

within-Guidelines         sentence       was       appropriate         in    light    of    the

factors.    The court did consider Stacey’s medical conditions in

mitigation,   but    determined          that       he     could      receive    appropriate

treatment     in     the        Bureau     of         Prisons.               Reviewing      the

reasonableness      of     this       sentence,          we   defer     to    the    district

court’s decision that this sentence achieved the purposes of

sentencing in Stacey’s case.               See United States v. Jeffery, 631

F.3d 669, 679 (4th Cir. 2011) (“[D]istrict courts have extremely

broad discretion when determining the weight to be given each of

the § 3553(a) factors.”).                Stacey has failed to overcome the

appellate    presumption         that    his        within-Guidelines           sentence     is

substantively      reasonable.           Accordingly,            we    conclude      that   the

district    court    did        not     abuse        its      discretion        in   imposing

sentence.

                                               5
             Stacey       also     avers       that     his       attorney      provided

ineffective assistance.            To establish ineffective assistance of

counsel, Stacey must show that: (1) counsel’s performance fell

below an objective standard of reasonableness; and (2) counsel’s

deficient         performance      was     prejudicial.               Strickland        v.

Washington,       466    U.S.    668,    687   (1984).            However,    claims   of

ineffective assistance of counsel are generally not cognizable

on direct appeal, unless counsel’s “ineffectiveness conclusively

appears from the record.”              United States v. Baldovinos, 434 F.3d

233,   239    (4th       Cir.    2006).         Here,       the     record     does    not

conclusively demonstrate that counsel was ineffective.                          As such,

Stacey’s claims are not cognizable on direct appeal; instead, he

can bring these claims in a 28 U.S.C. § 2255 (2012) proceeding

where he can further develop the record.

             In accordance with Anders, we have examined the entire

record in this case and have found no meritorious issues for

review.       Accordingly,         we    affirm       Stacey’s       convictions       and

sentence.         This court requires that counsel inform Stacey, in

writing,     of    his   right    to    petition      the   Supreme     Court    of    the

United States for further review.                     If Stacey 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 Stacey.                              We dispense

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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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