UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5152
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDWARD PETER FLOYD, JR., a/k/a Fish,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:10-cr-00154-1)
Submitted: June 28, 2012 Decided: August 13, 2012
Before NIEMEYER, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John H. Tinney, Jr., TINNEY LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant. R. Booth Goodwin II, United States
Attorney, R. Gregory McVey, Assistant United States Attorney,
Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edward Peter Floyd, Jr., pled guilty to distribution
of a quantity of oxycodone, 21 U.S.C. § 841(a)(1) (2006), and
was sentenced to 57 months’ imprisonment. He appeals, claiming:
(1) the district court erred, in its relevant conduct
calculation, in holding him accountable for the sale of 150
oxycodone pills, and (2), his attorney was ineffective for
failing to provide him with a transcript or recording of his
confession. Finding no error, we affirm.
The record reveals that Floyd signed a stipulation of
facts, included with his written plea agreement, detailing his
involvement in the sale of the 150 pills at issue, among other
sales. At his Fed. R. Crim. P. 11 hearing, Floyd stated that he
had gone over the plea agreement with his attorney and
understood its terms and consequences. Statements made under
oath during the plea proceedings are deemed binding absent
“clear and convincing evidence to the contrary.” Fields v.
Att’y Gen. of Md., 956 F.2d 1290, 1299 (4th Cir. 1992) (citing
Blackledge v. Allison, 431 U.S. 63, 74-75 (1977)). In light of
Floyd’s stipulation, we find no error, much less clear error, in
the district court’s inclusion of the 150 pills in its
calculation of drug quantity attributable to Floyd for
sentencing purposes. See United States v. Slade, 631 F.3d 185,
188 (4th Cir. 2011) (providing standard), cert. denied, 131
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S. Ct. 2943 (2011); see also U.S. Sentencing Guidelines Manual
(USSG) § 1B1.3(a)(1)(B) (Supp. 2010).
Floyd also argues that he was denied effective
assistance of counsel because his attorney failed to provide him
with a transcript or audio recording of his confession. Unless
an attorney’s ineffectiveness is conclusively apparent on the
face of the record, ineffective assistance claims are not
cognizable on direct appeal. United States v. Benton, 523 F.3d
424, 435 (4th Cir. 2008). Instead, such claims should be raised
in a motion brought pursuant to 28 U.S.C.A. § 2255 (West Supp.
2011), in order to promote sufficient development of the record.
United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir.
2010). Because counsel’s ineffectiveness is not conclusively
established by the record here, we decline to consider this
claim at this juncture.
Accordingly, we affirm Floyd’s conviction and
sentence. 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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