UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4145
JOEY CAULDER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Senior District Judge.
(CR-00-65)
Submitted: February 15, 2002
Decided: March 11, 2002
Before LUTTIG, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Bridgett B. Aguirre, Fuquay-Varina, North Carolina, for Appellant.
John Stuart Bruce, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Christine Witcover Dean, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. CAULDER
OPINION
PER CURIAM:
Joey Caulder appeals his conviction and 121-month sentence for
conspiring to distribute methamphetamine. See 21 U.S.C. § 846
(1994). On appeal, Caulder contends his trial counsel’s failure to seek
a downward departure under United States Sentencing Guidelines
Manual § 5H1.4, p.s. (2000) constitutes ineffective assistance of
counsel in violation of the Sixth Amendment. See Strickland v. Wash-
ington, 466 U.S. 668, 690-91, 694 (1984). However, such a claim is
not cognizable on direct appeal unless counsel’s ineffectiveness
appears plainly on the record. United States v. King, 119 F.3d 290,
295 (4th Cir. 1997). Because the record does not on its face demon-
strate Caulder received ineffective assistance of counsel, we affirm.
In relevant part, § 5H1.4 states that "[p]hysical condition . . . is not
ordinarily relevant in determining whether a sentence should be out-
side the applicable guideline range." Nevertheless, "an extraordinary
physical impairment may be a reason to impose a sentence below the
applicable guideline range." Id. Caulder argues the bilateral paresis he
suffers as a result of a 1982 diving accident constitutes such an
impairment, and thus that his attorney was ineffective for failing to
seek a departure under this provision. However, the record on appeal
does not conclusively demonstrate Caulder would have received such
a downward departure had his attorney requested it. Accordingly, we
reject Caulder’s sole assignment of error on appeal. See King, 119
F.3d at 295.
In light of the foregoing, Caulder’s conviction and sentence are
affirmed, and we dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED