UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4772
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CALVIN LAMONT JACKSON,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. G. Ross Anderson, Jr., Senior
District Judge. (7:06-cr-00712-GRA-1)
Submitted: April 27, 2010 Decided: May 26, 2010
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven M. Hisker, Duncan, South Carolina, for Appellant.
Elizabeth Jean Howard, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Calvin Lamont Jackson pled guilty to one count of
possession of a firearm in furtherance of a drug trafficking
offense, in violation of 18 U.S.C. § 924(c)(1)(A) (2006), and
one count of possession with intent to distribute five grams or
more of cocaine base and a quantity of cocaine, in violation of
21 U.S.C. § 841(a)(1), (b)(1) (2006). The district court
ultimately sentenced Jackson to 130 months of imprisonment. * In
this appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there are no
meritorious grounds for appeal, but questioning whether the
district court failed to comply with Fed. R. Crim. P. 11 in
accepting Jackson’s guilty plea. Jackson filed a pro se
supplemental brief asserting ineffective assistance of counsel
based on appellate counsel’s filing of an Anders brief rather
than pursuing the claims Jackson desired. The Government
elected not to file a brief.
The purpose of the Rule 11 colloquy is to ensure that
the defendant enters the guilty plea knowingly and voluntarily.
See United States v. Vonn, 535 U.S. 55, 58 (2002). Prior to
accepting a guilty plea, a trial court must inform the defendant
*
The district court initially imposed a 144-month sentence,
but subsequently reduced it to 130 months of imprisonment,
pursuant to 18 U.S.C. § 3582(c)(2) (2006).
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of, and determine that he understands, the nature of the charges
to which the plea is offered, any mandatory minimum penalty, the
maximum possible penalty he faces, and the various rights he
relinquishes by pleading guilty. Fed. R. Crim. P. 11(b). The
court also must determine whether there is a factual basis for
the plea. Id.; United States v. DeFusco, 949 F.2d 114, 120 (4th
Cir. 1991).
There is a strong presumption that a defendant’s
guilty plea is binding and voluntary if the Rule 11 hearing was
adequate. United States v. Puckett, 61 F.3d 1092, 1099 (4th
Cir. 1995). When, as here, a defendant does not move to
withdraw his guilty plea in the district court, we review for
plain error the adequacy of the guilty plea proceeding under
Rule 11. United States v. Martinez, 277 F.3d 517, 525 (4th Cir.
2002). “To establish plain error, [Jackson] must show that an
error occurred, that the error was plain, and that the error
affected his substantial rights.” United States v. Muhammad,
478 F.3d 247, 249 (4th Cir. 2007). Even if Jackson satisfies
these requirements, “correction of the error remains within our
discretion, which we should not exercise unless the error
seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. (internal quotation marks and
alteration omitted).
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Jackson has not presented any evidence or argument to
demonstrate plain error. Indeed, the record reveals that the
district court substantially complied with the Fed. R. Crim.
P. 11 requirements during the plea colloquy, ensuring that
Jackson’s plea was knowing and voluntary, that he understood the
rights he was giving up by pleading guilty and the sentence he
faced, and that he committed the offenses to which he pled
guilty. The district court did, however, fail to advise Jackson
of his rights to persist in his plea of not guilty, to the
continued assistance of counsel, or to compel the attendance of
witnesses if he decided to proceed to trial.
Because Jackson cannot show that “he would not have
entered into his plea agreement with the Government” if the
court had advised him of these rights, he cannot establish that
the court’s omissions affected his substantial rights. See
Martinez, 277 F.3d at 532. The district court specifically
noted that before changing his plea to guilty, Jackson needed to
satisfy the court that the change was voluntary. Moreover, the
district court advised Jackson of the panoply of trial rights he
would waive if he persisted in his desire to change his plea and
provided numerous opportunities to retain his plea of not
guilty. Additionally, Jackson had appointed counsel in whom he
expressed full satisfaction at his Rule 11 colloquy. Finally,
the district court specifically noted Jackson’s right to offer
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evidence on his own behalf. Because the court did not commit
plain error during the Rule 11 hearing, and therefore did not
plainly err in accepting Jackson’s plea as knowing, voluntary,
and supported by a sufficient factual basis, we affirm Jackson’s
conviction.
Finally, we have reviewed Jackson’s pro se submission
and find no basis to consider Jackson’s ineffective assistance
of counsel claims in this appeal. Claims of ineffective
assistance of counsel are generally not cognizable on direct
appeal unless the record conclusively establishes that counsel’s
performance was constitutionally deficient. United States v.
Benton, 523 F.3d 424, 435 (4th Cir. 2008). To allow for
adequate development of the record, ineffective assistance of
counsel claims ordinarily should be pursued in a 28 U.S.C.A.
§ 2255 (West Supp. 2009) motion. United States v. Hoyle, 33
F.3d 415, 418 (4th Cir. 1994). The record before this court
does not conclusively establish ineffective assistance of
counsel. Thus, we decline to consider Jackson’s ineffective
assistance of counsel claim. To the extent Jackson’s pro se
pleading is construed to raise substantive claims, we conclude
that they lack merit.
Having thoroughly reviewed the record and finding no
meritorious issues for review, we affirm the district court’s
judgment. This court requires that counsel inform Jackson in
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writing of his right to petition the Supreme Court of the United
States for further review. If Jackson requests that a petition
be filed, but counsel believes that such a petition would be
frivolous, then counsel may move this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Jackson. 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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