UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4889
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT FLEMING,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:09-cr-00021-FPS-JSK-7)
Submitted: March 19, 2012 Decided: April 6, 2012
Before WILKINSON, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Katy J. Cimino, Assistant Federal Public Defender, Clarksburg,
West Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, John C. Parr, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Fleming pled guilty to one count of
distribution of cocaine base within 1000 feet of a protected
location, in violation of 21 U.S.C.A. §§ 841(a)(1), (b)(1)(C),
860 (West 1999 & Supp. 2011). Fleming was sentenced to 121
months in prison. In accordance with Anders v. California, 386
U.S. 738 (1967), Fleming’s attorney has filed a brief certifying
that there are no meritorious issues for appeal but questioning
whether the district court adequately complied with Rule 11 when
accepting Fleming’s plea. Fleming has filed a pro se
supplemental brief in which he contends that (1) his plea was
not knowing and voluntary, (2) he did not receive effective
assistance of counsel during the plea and sentencing process,
and (3) the Government breached the terms of his plea agreement.
For the following reasons, we affirm Fleming’s conviction and
sentence.
First, because Fleming did not move to withdraw his
plea, we review his Rule 11 hearing for plain error. United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). “[T]o
satisfy the plain error standard, [an appellant] must show: (1)
an error was made; (2) the error is plain; and (3) the error
affects substantial rights.” United States v. Massenburg, 564
F.3d 337, 342-43 (4th Cir. 2009). Even if Fleming satisfies
these requirements, correction of the error lies within our
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discretion, if we conclude that the error “seriously affects the
fairness, integrity or public reputation of judicial
proceedings.” Id. at 343 (internal quotation marks omitted).
Counsel concedes that the Rule 11 proceeding contained no plain
error, and, upon review, we agree.
Where, as here, the district court substantially
complies with Rule 11 when accepting a defendant’s plea, we
attach a strong presumption that the plea is knowing and
voluntary, and, consequently, final and binding. United States
v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc).
Furthermore, Fleming’s pro se assertions regarding his inability
to understand the terms of his plea agreement or the magnitude
of the potential sentence he faced are directly contradicted by
his sworn statements before the district court during his Rule
11 hearing. These averments carry a strong presumption of
validity, and Fleming has failed to offer a credible basis on
which to doubt their veracity. Blackledge v. Allison, 431 U.S.
63, 74 (1977); Fields v. Attorney Gen., 956 F.2d 1290, 1299 (4th
Cir. 1992).
Fleming’s pro se supplemental brief alleges that his
counsel below rendered constitutionally ineffective assistance.
Generally, claims of ineffective assistance of counsel are not
cognizable on direct appeal unless the record conclusively
establishes counsel’s “objectively unreasonable performance” and
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resulting prejudice. United States v. Benton, 523 F.3d 424, 435
(4th Cir. 2008). Instead, ineffective assistance claims are
most appropriately pursued in proceedings under 28 U.S.C.A.
§ 2255 (West Supp. 2011). See United States v. Baptiste, 596
F.3d 214, 216 n.1 (4th Cir. 2010). Because the record before us
fails to establish conclusively Fleming’s claims regarding his
counsel’s deficient performance, we decline to consider them at
this juncture. If he wishes, Fleming may raise these claims in
another § 2255 motion without first seeking authorization from
this Court. See In re Goddard, 170 F.3d 435, 437 (4th Cir.
1999).
In accordance with Anders, we have reviewed the record
and Fleming’s remaining pro se claims and have found no
meritorious issues for appeal. We therefore affirm Fleming’s
conviction and sentence. This Court requires that counsel
inform Fleming, in writing, of his right to petition the Supreme
Court of the United States for further review. If Fleming
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, counsel may move in this
Court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Fleming. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
Court and argument would not aid the decisional process.
AFFIRMED
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