United States v. Edward Floyd, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-5152

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

2
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