United States v. Stoutenburgh

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4537

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GEORGE C. STOUTENBURGH,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:05-cr-283-W)

Submitted: December 19, 2007 Decided: January 22, 2008

Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Carol Ann Bauer, Morganton, North Carolina, for Appellant. Corey
F. Ellis, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

George C. Stoutenburgh appeals his twelve-month and one-

day sentence after pleading guilty to conspiracy to defraud the

United States, in violation of 18 U.S.C. § 371 (2000), through

unauthorized reproduction and distribution of copyrighted material.

Stoutenburgh’s counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), stating that there are no

meritorious issues for appeal, but asking this court to review

whether Stoutenburgh received effective assistance of counsel at

his sentencing hearing. Stoutenburgh filed a supplemental pro se

brief in which he further addresses his claim of ineffective

assistance.

A claim of ineffective assistance of counsel should be

raised in a 28 U.S.C. § 2255 (2000) motion with the district court

rather than on direct appeal, unless the record conclusively

demonstrates ineffective assistance. United States v. King, 119

F.3d 290, 295 (4th Cir. 1997) (internal citations and quotations

omitted). Such a claim cannot be fairly adjudicated on direct

appeal when the appellant has not raised the issue before the

district court and there is no statement from counsel on the

record. United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.

1991). Because there is no evidence in the record to support

Stoutenburgh’s allegations of ineffective assistance prior to and

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during his sentencing hearing, Stoutenburgh’s claims should be

raised in a § 2255 motion rather than on direct appeal.*

In accordance with Anders, we have reviewed the record in this

case and have found no meritorious issues for appeal. We therefore

affirm Stoutenburgh’s conviction and sentence. This court requires

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 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

*
To the extent that Stoutenburgh raises a claim regarding the
Government’s refusal to move for a downward departure pursuant to
U.S. Sentencing Guidelines Manual § 5K1.1 (2005), the filing of
such a motion is within the Government’s sole discretion. See Fed.
R. Crim. P. 35(b). The Government was not required to move for a
reduction under the terms of the plea agreement. Nor is there any
evidence in the record indicating that the refusal was based on an
unconstitutional motive. See Wade v. United States, 504 U.S. 181,
185-86 (1992).

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