UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4196
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
VIRGIL W. WOMACK,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. G. Ross Anderson, Jr., Senior
District Judge. (8:09-cr-00786-GRA-1)
Submitted: January 12, 2011 Decided: January 31, 2011
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mario A. Pacella, STROM LAW FIRM, L.L.C., Columbia, South
Carolina, for Appellant. David Calhoun Stephens, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Virgil Womack pled guilty to wire fraud, in violation
of 18 U.S.C. § 1343 (2006), and was sentenced to twenty-four
months in prison. He now appeals. His attorney has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
claiming that the district court erred in enhancing Womack’s
base offense level based on amount of loss but stating that
there are no meritorious issues for appeal. Womack has filed a
pro se supplemental brief raising additional issues. We affirm.
In the Anders brief, Womack contends that the district
court erred when it increased his base offense level of 7, see
U.S. Sentencing Guidelines Manual (“USSG”) § 2B1.1(a)(1) (2008),
by twelve levels based on the amount of intended loss, which was
determined to be $250,000. See USSG § 2B1.1(b)(1)(G) (12-level
increase where loss exceeds $200,000). Counsel states that the
parties informed the court at Womack’s Fed. R. Crim. P. 11
hearing that there was no loss to be included as relevant
conduct. Our review of the transcript of that proceeding
discloses that, while the court was informed that there was no
actual loss, the parties also informed the court that they could
not at that time determine the amount of intended loss. *
*
In his pro se brief, Womack contends that, because there
was no actual loss, his offense level was improperly enhanced.
His contention has no merit. The sentencing guidelines provide
(Continued)
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Accordingly, increasing Womack’s base offense level based on the
amount of intended loss did not contravene any representations
made at the Rule 11 proceeding.
In his pro se brief, Womack complains that the
indictment was defective, an FBI agent lied at a probable cause
hearing, and the case was based on a lie told to authorities by
his brother. His valid guilty plea, however, waives these
claimed antecedent jurisdictional defects. See Tollett v.
Henderson, 411 U.S. 258, 267 (1973).
Finally, Womack’s claim of ineffective assistance of
counsel is not cognizable on appeal because ineffectiveness
does not conclusively appear on the face of the record. Any
such claim must be raised, if at all, in a 28 U.S.C.A. § 2255
(West Supp. 2010) motion. See United States v. Richardson, 195
F.3d 192, 198 (4th Cir. 1999).
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none. We therefore
affirm. This court requires that counsel inform his client, in
that the amount of loss for purposes of sentencing enhancements
is the greater of the actual loss or the intended loss. USSG
§ 2B1.1, cmt. n.3(A). “Intended loss” is defined as “the
pecuniary harm that was intended to result from the offense
. . . and . . . includes intended pecuniary harm that would have
been impossible or unlikely to occur[.]” USSG § 2B1.1, cmt.
n.3(A)(ii).
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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 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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