United States of America v. Brian Fanary, a/k/a Brian Marshall

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5101
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN FANARY, a/k/a Brian Marshall,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Irene C. Berger,
District Judge. (5:10-cr-00003-1)
Submitted: January 9, 2012 Decided: February 6, 2012
Before WILKINSON, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dennis M. Hart, Washington, D.C., for Appellant. R. Booth
Goodwin II, United States Attorney, Miller Bushong, Assistant
United States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Pursuant to a plea agreement, Brian Fanary pled guilty
to possession with intent to distribute a quantity of oxycodone,
in violation of 21 U.S.C. § 841(a)(1) (2006), and possession of
a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2006). The district court sentenced
Fanary to eighty-five months in prison, seven months above the
advisory Guidelines range. Fanary timely appealed his sentence.
Fanary first argues that he was denied effective
assistance of counsel when his defense attorney failed to
challenge the drug quantity attributed to him for sentencing
purposes, contending that a portion of those drugs were for
personal use. Unless an attorney’s ineffectiveness is
conclusively apparent on the face of the record, ineffective
assistance claims are generally not addressed on direct appeal.
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008);
United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999)
(providing standard and noting that ineffective assistance of
counsel claims generally should be raised by motion under 28
U.S.C.A. § 2255 (West Supp. 2011)). The record in this case
falls short of this exacting standard. Therefore, Fanary’s
ineffective assistance claim is not cognizable on direct appeal.
Alternatively, Fanary challenges the reasonableness of
his sentence by arguing that there could be no legitimate

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finding of the drug quantity where the defense of personal use
was never raised. We review a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007); see also United States v.
Layton, 564 F.3d 330, 335 (4th Cir. 2009). 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) [(2006)] factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence.” Gall, 552
U.S. at 51.
The Government bears the burden of proving, by a
preponderance of the evidence, the drug quantity attributable to
a defendant. United States v. Carter, 300 F.3d 415, 425 (4th
Cir. 2002). Generally, in reviewing the district court’s
calculations under the Guidelines, this Court “review[s] the
district court’s legal conclusions de novo and its factual
findings for clear error,” United States v. Manigan, 592 F.3d
621, 626 (4th Cir. 2010) (internal quotation marks and citation
omitted), and will “find clear error only if, on the entire
evidence, we are left with the definite and firm conviction that
a mistake has been committed.” Id. at 631 (internal quotation

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marks and citation omitted). However, because he failed to
object to the district court’s calculation of drug quantity at
sentencing, Fanary’s claim is reviewed for plain error. United
States v. Blatstein, 482 F.3d 725, 731 (4th Cir. 2007).
Rule 32(i)(3)(A) of the Federal Rules of Criminal
Procedure permits a district court to “accept any undisputed
portion of the presentence report as a finding of fact.” Fed.
R. Crim. P. 32(i)(3)(A). Moreover, even if a defendant objects
to a finding in the PSR, in the absence of an affirmative
showing that the information is not accurate, the court is “free
to adopt the findings of the [PSR] without more specific inquiry
or explanation.” United States v. Love, 134 F.3d 595, 606 (4th
Cir. 1998) (internal quotation marks omitted).
Here, there were no objections to the drug quantities
attributed to Fanary, much less any affirmative showing that the
information in the PSR was not accurate. We therefore conclude
that the district court did not err, plainly or otherwise, by
relying on the undisputed facts in the PSR to determine the drug
quantity attributed to Fanary for sentencing purposes and that,
accordingly, Fanary’s sentence is reasonable.
For these reasons, we affirm Fanary’s sentence.
Fanary’s motion to file a pro se supplemental brief is denied.
We dispense with oral argument because the facts and legal

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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

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