US v. Joel Henry, No. 08-4318 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4318 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOEL EUGENE HENRY, a/k/a Sleepy, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:06-cr-00022-RLV-CH-1) Submitted: June 9, 2009 Decided: July 6, 2009 Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North Carolina, for Appellant. Thomas Richard Ascik, Amy Elizabeth Ray, Assistant United States Attorneys, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Joel Eugene Henry pled guilty pursuant to a written plea agreement distribute to fifty conspiracy grams or to more possess of with cocaine intent base and to five kilograms or more of cocaine, in violation of 21 U.S.C. § 846 (2006), and was sentenced to 210 months in prison. Henry timely appealed. Counsel for Henry filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious grounds for appeal, but questioning whether trial counsel provided ineffective assistance. a supplemental counsel was pro se letter ineffective. that Finding also no Henry has filed asserted reversible his trial error, we affirm. Henry s counsel argues that trial counsel was ineffective for withdrawing his objections to two enhancements in the resulted presentence in a report four-level when the decrease objections in offense could have level. At sentencing, counsel explained that he withdrew the objections because the seven-level departure that the Government was recommending for Henry s substantial assistance resulted in a much a larger sentence decrease. Claims of ineffective assistance generally not cognizable on direct appeal. 2 of counsel are United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). assistance U.S.C.A. claims § 2255 are appropriately (West Supp. brought 2008) development of the factual record. Instead, ineffective to Id. pursuant allow for to 28 adequate A defendant may raise an ineffective assistance claim on direct appeal only if the record conclusively demonstrates that defense counsel did not provide effective representation. 434 F.3d 233, assistance a 239 (4th defendant representation Cir. must fell United States v. Baldovinos, 2006). show below To both: an prove (1) ineffective that objective counsel s standard of reasonableness and (2) that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Here, the sentencing record does demonstrate that counsel was ineffective. not conclusively Counsel s decision to withdraw the objections to the enhancements was tactical, and thus is entitled Strickland, 466 to U.S. a at strong presumption 689. Nor does of reasonableness. Henry demonstrate a reasonable probability that the court would have lowered his sentencing guidelines withdrawn the range objections. any further Because 3 if the counsel record had not does not conclusively demonstrate ineffective assistance, this claim is not cognizable on direct appeal. * In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court s judgment. This court requires that counsel inform Henry, in writing, of the right to petition the Supreme Court of the United States for further review. If Henry requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in representation. this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Henry. We dispense with oral argument because the facts and legal contentions before the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED * Under like reasoning, Henry s pro se contention that his trial counsel afforded ineffective representation must be raised in an appropriate post-conviction proceeding rather than on direct appeal. We find no merit to the remaining issues Henry raises in his pro se submission. 4
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