UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4761
GEORGE J. CASSELL,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, Chief District Judge.
(CR-01-14)
Submitted: March 13, 2002
Decided: April 3, 2002
Before WILKINS, MICHAEL, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
G. Ernest Skaggs, SKAGGS & SKAGGS, Fayetteville, West Vir-
ginia, for Appellant. Zelda Elizabeth Wesley, OFFICE OF THE
UNITED STATES ATTORNEY, Clarksburg, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. CASSELL
OPINION
PER CURIAM:
George J. Cassell appeals the judgment of conviction and sentence
following his guilty plea to distribution of crack cocaine in violation
of 21 U.S.C.A. § 841(a)(1) (West 1999) and possession of a firearm
as an unlawful user and addict of a controlled substance under 18
U.S.C.A. § 922(g) (West 2000). Cassell’s attorney noted a timely
appeal and filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), in which he represents that there are no arguable
issues of merit presented by this appeal. Nonetheless, counsel asserted
in the Anders brief that the district court abused its discretion in
declining to depart downward pursuant to United States Sentencing
Guidelines Manual § 3E1.1 (2000) for acceptance of responsibility.
Cassell has filed a supplemental pro se brief asserting: (1) the district
court lacked subject matter jurisdiction to enhance his sentence pursu-
ant to USSG § 2K2.1(b)(1)(E); and (2) he received ineffective assis-
tance of counsel at sentencing after he signed the plea agreement.
The Government has moved to dismiss the appeal based on a
waiver provision in Cassell’s plea agreement. We grant the motion to
dismiss based on the appellate waiver as to all claims except for the
ineffective assistance of counsel claim. Because Cassell’s ineffective
assistance of counsel claims do not plainly appear on the face of the
record, we dismiss as to those claims for that reason. See United
States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991).
We have reviewed Cassell’s plea agreement and the Rule 11 collo-
quy and find that Cassell knowingly and intelligently waived his right
to appeal. See United States v. Broughton-Jones, 71 F.3d 1143, 1146
(4th Cir. 1995). We therefore find Cassell waived his right to appeal
the district court’s denial of a downward departure under USSG
§ 3E1.1 for acceptance of responsibility, and the issue raised in Cas-
sell’s pro se brief that the district court lacked subject matter jurisdic-
tion to enhance Cassell’s sentence pursuant to USSG
§ 2K2.1(b)(1)(E). Accordingly, we grant the Government’s motion to
dismiss the appeal on these two issues.
As for Cassell’s claim of ineffective assistance, claims of ineffec-
tive assistance of counsel are generally not cognizable on direct
UNITED STATES v. CASSELL 3
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 obtains
when the record conclusively establishes ineffective assistance of
counsel. King, 119 F.3d at 295. Our thorough review of the present
record does not conclusively reveal establish ineffective assistance of
counsel. We therefore dismiss the appeal as to those claims.
Accordingly, we grant the Government’s motion to dismiss Cas-
sell’s claims validly waived in his plea agreement and dismiss as to
his ineffective assistance of counsel claims because they do not con-
clusively appear on the face of the record. As required by Anders, we
have independently reviewed the entire record and conclude that there
are no non-frivolous grounds for appeal. Pursuant to the plan adopted
by the Fourth Circuit Judicial Council in implementation of the Crim-
inal Justice Act of 1964, 18 U.S.C. § 3006A (1994), this court
requires that counsel inform his client, in writing, of his right to peti-
tion the Supreme Court of the United States for further review. If
requested by the client to do so, counsel should prepare a timely peti-
tion for writ of certiorari, unless counsel believes that such a petition
would be frivolous. In that case, counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on the client. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
DISMISSED