UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4198
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KHALEEL ALI HILLIARD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00156-NCT)
Submitted: November 15, 2007 Decided: November 20, 2007
Before WILLIAMS, Chief Judge, and MOTZ and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Seth R. Cohen, SMITH, JAMES, ROWLETT & COHEN, L.L.P., Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Paul A. Weinman, Assistant United States Attorney,
Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Khaleel Ali Hilliard appeals his 189-month sentence
entered pursuant to his guilty plea to one count of bank robbery.
Hilliard’s attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967). Hilliard then obtained new
counsel and filed a supplemental brief and joint appendix.
Hilliard has filed a pro se informal brief. Finding no error, we
affirm.
Hilliard pled guilty after the second day of trial. At
the Fed. R. Crim. P. 11 hearing, Hilliard inquired about receiving
a three level reduction for acceptance of responsibility under U.S.
Sentencing Guidelines Manual § 3E1.1(b) (2005 & Supp. 2006). At
sentencing, the court applied a two-level reduction for acceptance
of responsibility, and counsel questions whether the failure to add
an additional decrease was error. To receive the additional level
of reduction, the Government had to move for the reduction. See
USSG § 3E1.1(b). The Government was not bound to do so, and there
was no agreement for such in the plea agreement. Therefore, the
court did not err in failing to award an additional decrease of one
offense level.
Hilliard’s Anders brief also raises the issue of whether
this court’s review of a post-Booker* sentence relying on a
presumption of reasonableness results in a mandatory application of
*
United States v. Booker, 543 U.S. 220 (2005).
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the Sentencing Guidelines. The Supreme Court recently upheld the
presumption of reasonableness in Rita v. United States, 127 S. Ct.
2456, 2462-69 (2007) (upholding application of presumption of
reasonableness to within-Guidelines sentence). Therefore, this
challenge fails.
Hilliard’s new counsel filed a brief arguing that counsel
was ineffective by miscommunicating a plea offer by the Government
to the Defendant, resulting in Hilliard not being awarded a third
point for acceptance of responsibility. Hilliard’s pro se informal
brief raises the same issue. Claims of ineffective assistance of
counsel are generally not cognizable on direct appeal. See United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Rather, to
allow for adequate development of the record, a defendant must
bring his claim in a 28 U.S.C. § 2255 (2000) motion. See id.;
United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An
exception exists when the record conclusively establishes
ineffective assistance. United States v. Richardson, 195 F.3d 192,
198 (4th Cir. 1999); King, 119 F.3d at 295. After reviewing the
record on appeal, including the supplemental brief filed by newly
appointed counsel, we conclude that the record does not
conclusively establish ineffective assistance and that it would be
more appropriate to bring this claim in a 28 U.S.C. § 2255 motion.
See Richardson, 195 F.3d at 198.
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Hilliard’s conviction and sentence.
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 that such a petition would be frivolous, then
counsel may move 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
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