United States of America v. Joe Francis Rhem, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4444
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOE FRANCIS RHEM, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Dever III, District Judge. (7:16-cr-00050-D-1)
Submitted: April 18, 2019 Decided: May 8, 2019
Before WYNN and THACKER, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
James B. Craven III, Durham, North Carolina, for Appellant. Jennifer P. May-Parker,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Joe Francis Rhem, Jr., pleaded guilty to conspiracy to possess with intent to
distribute and distribute five kilograms or more of cocaine, in violation of 21 U.S.C.
§ 846 (2012). The district court sentenced Rhem to 159 months of imprisonment and he
now appeals. On appeal, counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), questioning whether the sentence is procedurally and substantively
unreasonable, whether trial counsel rendered ineffective assistance, and whether the
Government committed prosecutorial misconduct. Rhem filed a pro se supplemental
brief raising additional issues.* Finding no error, we affirm.
Counsel first questions whether the district court correctly calculated the drug
weight based on its credibility determinations and whether the sentence is substantively
reasonable. We review a sentence for reasonableness, applying an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 41 (2007); see also United States v. White,
810 F.3d 212, 229 (4th Cir. 2016). In so doing, we examine the sentence for “significant
procedural error,” including “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the [18
U.S.C.] § 3553(a) [(2012)] factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence.” Gall, 552 U.S. at 51. We then
review the substantive reasonableness of the sentence. United States v. Evans, 526 F.3d
* We have reviewed the issues raised in the pro se supplemental brief and conclude
that they lack merit.

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155, 161 (4th Cir. 2008). “Any sentence that is within or below a properly calculated
Guidelines range is presumptively reasonable.” White, 810 F.3d at 230 (internal
quotation marks omitted).
In addition, we “review the district court’s calculation of the quantity of drugs
attributable to a defendant for sentencing purposes for clear error.” United States v.
Crawford, 734 F.3d 339, 342 (4th Cir. 2013). Under this standard, “we will reverse the
district court’s finding only if we are left with the definite and firm conviction that a
mistake has been committed.” Id. (internal quotation marks omitted). We have
thoroughly reviewed the record and the relevant legal authorities and conclude that the
sentence is both procedurally and substantively reasonable. The district court did not
clearly err in calculating the drug weight, otherwise properly calculated the advisory
Guidelines range, addressed the parties’ sentencing arguments, and sufficiently explained
the chosen sentence. Moreover, Rhem has failed to overcome the presumption of
reasonableness that we apply to his below-Guidelines sentence.
Counsel next questions whether trial counsel rendered ineffective assistance in
failing to secure a lower sentence for Rhem. To prove a claim of ineffective assistance of
counsel, a defendant must show (1) “that counsel’s performance was deficient,” and
(2) “that the deficient performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984). However, we may address a claim of ineffective assistance on
direct appeal only if the lawyer’s ineffectiveness conclusively appears on the record.
United States v. Faulls, 821 F.3d 502, 507-08 (4th Cir. 2016). Here, as ineffective

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assistance does not conclusively appear on the record, we decline to address this claim at
this time.
Finally, counsel questions whether the Government committed prosecutorial
misconduct. “When asserting a prosecutorial misconduct claim, a defendant bears the
burden of showing (1) that the prosecutors engaged in improper conduct, and (2) that
such conduct prejudiced the defendant’s substantial rights so as to deny the defendant a
fair trial.” United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005). Here, Rhem has
failed to demonstrate that the Government engaged in any improper conduct.
We have examined the entire record in accordance with the requirements of
Anders and have found no meritorious issues for appeal. Accordingly, we affirm the
judgment of the district court. This court requires that counsel inform Rhem, in writing,
of the right to petition the Supreme Court of the United States for further review. If
Rhem 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 Rhem. 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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