UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4682
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT MARTIN KUTZER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:07-cr-00089-LHT-1)
Submitted: July 2, 2009 Decided: July 15, 2009
Before TRAXLER, Chief Judge, and WILKINSON and KING, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Randolph Marshall Lee, Charlotte, North Carolina, for Appellant.
Donald David Gast, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Martin Kutzer was convicted by a jury of one
count of coercion and enticement of a minor in violation of 18
U.S.C. § 2422(b) (2006), and was sentenced to one hundred twenty
months in prison. On appeal, counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting there are
no meritorious grounds for appeal, but questioning whether
Kutzer’s conviction is supported by sufficient evidence. In a
pro se supplemental brief, Kutzer joined in the issues raised by
counsel and also questioned whether the statements he made while
in custody should have been suppressed; whether his trial
counsel was ineffective; and whether the district court erred in
giving the jury instructions.
Kutzer first contends the evidence was insufficient to
support his convictions. A jury’s verdict must be upheld on
appeal if there is substantial evidence in the record to support
it. Glasser v. United States, 315 U.S. 60, 80 (1942). In
determining whether the evidence in the record is substantial,
we view the evidence in the light most favorable to the
Government and inquire whether there is evidence that a
reasonable finder of fact could accept as adequate and
sufficient to establish the defendant’s guilt beyond a
reasonable doubt. United States v. Burgos, 94 F.3d 849, 862
(4th Cir. 1996) (en banc). We do not review the credibility of
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the witnesses and assume the jury resolved all contradictions in
the testimony in favor of the Government. United States v.
Kelly, 510 F.3d 433, 440 (4th Cir. 2007), cert. denied, 128 S.
Ct. 1917 (2008). In light of these principles, we conclude
substantial evidence supports Kutzer’s convictions.
In his supplemental brief, Kutzer claims that counsel
provided ineffective assistance at sentencing. 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 such claims in a 28 U.S.C.A.
§ 2255 (West Supp. 2009) motion. See id.; United States v.
Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception exists
where the record conclusively establishes ineffective
assistance. United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999); King, 119 F.3d at 295. Because the record does not
conclusively show that Kutzer’s counsel was ineffective, we
decline to consider Kutzer’s claim on direct appeal. We have
reviewed Kutzer’s remaining pro se claims and find they lack
merit.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Kutzer’s conviction and sentence. This
court requires that counsel inform Kutzer, in writing, of the
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right to petition the Supreme Court of the United States for
further review. If Kutzer 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 Kutzer.
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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