UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-6439
KEVIN L. STODDARD,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-93-437-M, CA-96-429-M)
Submitted: January 31, 1997
Decided: February 20, 1997
Before HALL, NIEMEYER, and HAMILTON, Circuit Judges.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
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COUNSEL
Kevin L. Stoddard, Appellant Pro Se. William Warren Hamel,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kevin L. Stoddard appeals the dismissal of his motion filed under
28 U.S.C. § 2255 (1994), amended by Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214. In
his § 2255 motion, Stoddard claimed that the district court erred by
failing to grant him an adjustment for acceptance of responsibility,
United States Sentencing Commission, Guidelines Manual, § 3E1.1
(Nov. 1993), and that he received ineffective assistance because his
counsel failed to call Kenneth Scott as a witness at his sentencing
hearing and to fully investigate the facts necessary to adequately rep-
resent him for sentencing purposes. Because we denied Stoddard's
acceptance of responsibility claim on direct appeal, United States v.
Stoddard, No. 94-5365, 1995 WL 417667 (4th Cir. July 7, 1995)
(unpublished), we will not revisit the issue. Accordingly, we affirm
the district court's order dismissing this claim. See Boeckenhaupt v.
United States, 537 F.2d 1182, 1183 (4th Cir. 1976) (issues fully con-
sidered on direct appeal from conviction may not be relitigated in the
form of a § 2255 motion).
With respect to Stoddard's claim that his counsel was ineffective,
however, the record is insufficient for the court to properly adjudicate
this claim because the district court failed to address the claim. Stod-
dard is entitled to effective assistance of counsel at sentencing. See
United States v. Burkley, 511 F.2d 47, 51 (4th Cir. 1975) (sentencing
is a critical stage of a criminal prosecution to which a defendant has
a right to effective assistance of counsel). Further, the district court's
failure to address the claim prevents this court from providing effec-
tive appellate review. See Brewster of Lynchburg, Inc. v. Dial Corp.,
33 F.3d 355, 366-68 (4th Cir. 1994). Because we cannot identify an
independent basis on which to uphold the district court's order, id.,
we must vacate this portion of the district court's order and remand
with instructions to address Stoddard's claim of ineffective assistance.
For the reasons stated herein, we affirm that portion of the order
denying the claim that the district court erred by failing to grant Stod-
dard a downward adjustment of his sentence for acceptance of respon-
sibility. However, we vacate the district court's order in part and
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remand with instructions for the district court to address whether
Stoddard received effective assistance of counsel at the sentencing
hearing and to provide reasoning for its decision. 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 IN PART, VACATED
IN PART, AND REMANDED
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