US v. Vincent Sinclair, No. 08-4231 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4231 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VINCENT SINCLAIR, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:07-cr-00015-BO-1) Submitted: March 25, 2009 Decided: April 30, 2009 Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Robert J. McAfee, MCAFEE LAW, P.A., New Bern, North Carolina, for Appellant. Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Vincent plea Sinclair agreement to pled guilty conspiracy to pursuant possess to a with written intent to distribute cocaine, conspiracy to kidnap, and using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A), 1201(a)(1); 21 U.S.C. § 846 (2006). Sinclair was sentenced to a total of 413 months imprisonment. Finding no error, we affirm. Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he asserts there are no meritorious district guilty court plea assistance. issues erred and for in appeal denying whether trial but the questions motion counsel to whether the withdraw the provided ineffective Sinclair filed a pro se supplemental brief, and we grant his motion to amend the pro se brief, joining in counsel s assertions and additionally contending that: (1) his waiver of indictment failed to comply with Fed. R. Crim. P. 7; (2) the Fed. R. Crim. P. 11 hearing was inadequate; (3) his residence was searched district in court violation erred in of the failing Fourth to Amendment; inquire into (4) the counsel s conflict of interest; (5) his sentence is unreasonable because it is disparate defendants; and to (6) sentences the received § 924(c) offense predicated on the conspiracy to kidnap count. 2 by other was involved improperly Sinclair whether the and district appellate court withdraw the guilty plea. counsel erred in initially denying the question motion to A defendant may withdraw a guilty plea prior to sentencing if he can show a fair and just reason for requesting the withdrawal. Fed. R. Crim. P. 11(d)(2)(B). In determining whether a defendant will be permitted to withdraw his guilty plea, a district court should consider: (1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary, (2) whether the defendant has credibly asserted his legal innocence, (3) whether there has been a delay between the entering of the plea and the filing of the motion, (4) whether defendant has had close assistance of competent counsel, (5) whether withdrawal will cause prejudice to the government, and (6) whether it will inconvenience the court and waste judicial resources. United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). The district court s denial of a motion to withdraw the guilty plea is reviewed for abuse of discretion. United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). closely scrutinize the Rule 11 colloquy and attach a We strong presumption that the plea is final and binding if the Rule 11 hearing is adequate. United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc). We have reviewed the Rule 11 hearing and conclude that it was adequate. Moreover, because Sinclair has failed to overcome the presumption that his plea is 3 final and binding, we conclude the district court did not abuse its discretion in denying the motion to withdraw. Sinclair and appellate counsel also contend that trial counsel provided assistance direct of ineffective counsel appeal, but claim assistance. should generally instead be An is not ineffective cognizable asserted in a on post- conviction motion under 28 U.S.C.A. § 2255 (West Supp. 2008). See United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). rule However, we have recognized an exception to the general when it conclusively appears from the record that defense counsel did not provide effective representation. Id. (quoting United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994)). Because the record does not conclusively establish that counsel was ineffective, the claim is not cognizable on appeal. We have carefully considered the additional claims raised in the pro se supplemental brief, as amended, in light of the applicable without merit. reviewed the meritorious legal standards, Further, entire issues in record for and find accordance in appeal. this the with case claims to Anders, we have found and Accordingly, we affirm be have no the judgment of the district court. This court requires that counsel inform his client, in writing, of his right to petition United States for further review. 4 the Supreme Court of the If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on the client. We dispense with oral contentions argument adequately because presented in the the facts and materials legal before the court are and argument would not aid the decisional process. AFFIRMED 5
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