UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4421
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HERMAN LEE INGRAM,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:05-cr-00361-HEH)
Submitted: December 4, 2006 Decided: January 12, 2007
Before WILKINSON, NIEMEYER, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles A. Gavin, BLACKBURN, CONTE, SCHILLING & CLICK, P.C.,
Richmond, Virginia, for Appellant. Olivia N. Hawkins, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Herman Lee Ingram appeals from his conviction and
169-month sentence imposed after he pled guilty to distribution of
cocaine base in violation of 21 U.S.C.A. § 841 (West 1999 & Supp.
2006). On appeal, counsel has filed an Anders* brief, stating that
there are no meritorious issues for appeal, but suggesting that
trial counsel was ineffective for failing to accurately determine
and advise Ingram regarding the sentencing consequences of his
guilty plea. Counsel has also filed a motion to withdraw. The
Government has filed a motion to dismiss the appeal, asserting that
Ingram’s claim of ineffective assistance of counsel is not
cognizable on direct review and his appeal is otherwise precluded
by the waiver of the right to appeal in his plea agreement. We
deny the motion to dismiss the appeal, but nevertheless affirm
Ingram’s conviction and sentence.
We agree with the Government that the ineffective
assistance of counsel claim Ingram seeks to raise is not cognizable
on direct appeal. To allow for adequate development of a record,
a defendant must bring his claim in a 28 U.S.C. § 2255 (2000)
motion, unless the record conclusively establishes ineffective
assistance of counsel. United States v. Richardson, 195 F.3d 192,
198 (4th Cir. 1999); United States v. King, 119 F.3d 290, 295 (4th
*
Anders v. California, 386 U.S. 738 (1967).
- 2 -
Cir. 1997). Here, the record does not conclusively establish that
Ingram’s counsel was ineffective.
Despite the fact that Ingram’s ineffective assistance of
counsel claim is not cognizable on direct appeal, we affirm
Ingram’s conviction and sentence rather than grant the Government’s
motion to dismiss. Because counsel has filed an Anders brief on
Ingram’s behalf, the court is obligated to conduct an independent
review of the record to determine whether there are any meritorious
issues for appeal. Having done so, we discern no such meritorious
issues. Nevertheless, because this process has entailed a
substantive examination of the record, we affirm rather than
dismiss. We also deny counsel’s motion to withdraw. This court
requires that counsel inform his client, in writing, of the 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 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 the client. 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
- 3 -