United States v. Hagwood

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 00-4914 BURTON BRAXTON HAGWOOD, Defendant-Appellant.  UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 00-4915 MICHAEL JENKINS, Defendant-Appellant.  Appeals from the United States District Court for the Northern District of West Virginia, at Martinsburg. Frederick P. Stamp, Jr., District Judge. (CR-00-13) Submitted: August 31, 2001 Decided: September 11, 2001 Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. COUNSEL Patricia A. Kurelac, Moundsville, West Virginia; Franklin W. Lash, Wheeling, West Virginia, for Appellants. Melvin W. Kahle, Jr., 2 UNITED STATES v. HAGWOOD United States Attorney, Sam G. Nazzaro, Assistant United States Attorney, Sharon L. Potter, Assistant United States Attorney, Whee- ling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). OPINION PER CURIAM: Michael Jenkins and Burton Braxton Hagwood appeal the sen- tences imposed by the district court following guilty pleas to posses- sion with intent to distribute and distribution of powder and crack cocaine in violation of 21 U.S.C.A. § 841(a)(1) (West 1999). With regard to Jenkins, counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Jenkins has filed a pro se supple- mental brief. Finding no reversible error, we affirm. On appeal, Jenkins claims he did not understand he was waiving the right to appeal his sentence and that the waiver is therefore not binding. Jenkins further claims the district court erred by assigning him one criminal history point for a prior conviction for operating a business without a license. A review of Jenkins’ Fed. R. Crim. P. 11 plea hearing shows Jenkins knowingly and voluntarily waived his right to appeal. Because Jenkins waived his right to appeal, his chal- lenge to the district court’s application of the Sentencing Guidelines is waived. United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). Hagwood contends his trial counsel was ineffective. Claims of ineffective assistance of counsel are generally not cognizable on direct appeal. United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). To allow for adequate development of the record, claims of ineffective assistance of counsel must ordinarily be pursued in a 28 U.S.C.A. § 2255 (West Supp. 2000) motion. United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception to this general rule UNITED STATES v. HAGWOOD 3 obtains when the record conclusively establishes ineffective assis- tance of counsel. King, 119 F.3d at 295. A review of the record does not conclusively establish ineffective assistance of counsel, and Hag- wood’s ineffective assistance claims are therefore not cognizable in this direct appeal. Pursuant to Anders, we have reviewed the record and find no error. Accordingly, we affirm Jenkins’ and Hagwood’s sentences. With regard to Jenkins, this court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Coun- sel’s motion must state that a copy thereof was served on the client. We dispense with oral argument because the facts and legal conten- tions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED