United States v. Bennett

                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4929



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


TERRY JACKSON BENNETT,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:04-cr-00315)


Submitted:   June 15, 2007                  Decided:   July 10, 2007


Before WILLIAMS, Chief Judge, TRAXLER, Circuit Judge, and HAMILTON,
Senior Circuit Judge.


Dismissed in part and affirmed in part by unpublished per curiam
opinion.


Johnny E. Watson, Sr., Columbia, South Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Terry    Jackson     Bennett      appeals    his     conviction      and

235-month sentence following his guilty plea, pursuant to a plea

agreement, to one count of assaulting, resisting or impeding an

officer in violation of 18 U.S.C. §§ 111(a), (b) (West 1999 & Supp.

2006), and one count of possession with intent to distribute

cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)

(West 1999 & Supp. 2006).        The Government filed a motion to dismiss

based upon the waiver of appellate rights to which Bennett agreed

as a part of his plea agreement.

            We conclude that Bennett’s appellate waiver is valid and

encompasses    all   issues    raised    on   appeal    except    his    claim   of

ineffective assistance of counsel. We have reviewed that claim and

determine that it does not “conclusively appear” on the record that

counsel was ineffective. See United States v. James, 337 F.3d 387,

391 (4th Cir. 2003).       Such a claim is more properly raised in a

proceeding under 28 U.S.C. § 2255 (2000).               Accordingly, we grant

the Government’s motion to dismiss with respect to issues covered

by the waiver, deny the motion with respect to the ineffective

assistance claim, and affirm as to the ineffective assistance of

counsel    claim.    We   also    deny   Bennett’s      motion    to    substitute

counsel.    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.



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DISMISSED IN PART, AFFIRMED IN PART




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