UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4652
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARVIN FITZGERALD OUTING,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:06-cr-00102-FDW-1)
Submitted: April 13, 2009 Decided: May 4, 2009
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Haakon Thorsen, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marvin Fitzgerald Outing pleaded guilty to possession
of a firearm after having been previously convicted of a felony,
in violation of 18 U.S.C. § 922(g) (2006). Outing was sentenced
to 118 months’ imprisonment and now appeals. His attorney has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), raising three issues but stating that there are no
meritorious issues for appeal. Outing has filed a pro se brief
raising additional issues. We affirm.
In the Anders brief, counsel first questions whether
Outing’s guilty plea was voluntary because Outing claims his
previous attorney intimidated him into pleading guilty. Our
review of the transcript of the hearing pursuant to Fed. R.
Crim. P. 11 discloses that Outing voluntarily entered his plea,
and his post-plea assertions to the contrary do not overcome the
sworn statements he made at the plea hearing. See Blackledge v.
Allison, 431 U.S. 63, 74 (1977). Counsel next questions whether
the district court erred in applying a four-level enhancement
pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)
(2006). Our review of the record discloses no error. Finally,
counsel questions whether the district court erred in failing to
order a hearing inquiring into Outing’s competency to be
sentenced. The record reveals that the district court committed
no error in concluding that there was no reasonable cause to
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order such a hearing. See 18 U.S.C. § 4244(a) (2006) (providing
standard).
The claims raised in Outing’s pro se brief lack merit.
First, his claim that counsel was ineffective is not cognizable
on direct appeal because ineffectiveness does not conclusively
appear on the face of the record. See United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Second, Outing’s
claims of prosecutorial misconduct are based on his own
misapprehension of the facts and law and are likewise without
merit.
We have examined the entire record in this case in
accordance with the requirements of Anders and have found no
meritorious issues for appeal. We therefore affirm Outing’s
conviction and sentence. We deny Outing’s motion to appoint new
counsel, for an extension of time to file a pro se supplemental
brief as moot, and for copies of the sentencing transcript.
This court requires that counsel inform Outing, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Outing requests that 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 Outing. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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