US v. William Cobb, No. 11-4241 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4241 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM EDWARD COBB, Defendant - Appellant. No. 11-4242 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM EDWARD COBB, Defendant - Appellant. No. 11-4246 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM EDWARD COBB, Defendant - Appellant. No. 11-4248 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM EDWARD COBB, Defendant - Appellant. No. 11-4249 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM EDWARD COBB, Defendant - Appellant. No. 11-4250 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. 2 WILLIAM EDWARD COBB, Defendant - Appellant. Appeals from the United States District Court for the District of South Carolina, at Charleston. Solomon Blatt, Jr., Senior District Judge. (2:10-cr-00202-SB-1; 2:09-cr-00086-SB-1; 2:09cr-00060-SB-1; 2:09-cr-00056-SB-1; 2:09-cr-00053-SB-1; 9:07-cr00569-SB-1) Submitted: October 26, 2011 Decided: November 17, 2011 Before NIEMEYER, KING, and GREGORY, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. Steven M. Hisker, HISKER LAW FIRM, PC, Duncan, South Carolina, for Appellant. Sean Kittrell, Assistant United States Attorney, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 3 PER CURIAM: William Edward Cobb pled guilty in two separate Fed. R. Crim. P. 11 hearings to a total of twenty-two counts of bank robbery, in violation of 18 U.S.C. § 2113(a) (2006). He was sentenced to concurrent terms of 180 months in prison. appealed. Cobb In accordance with Anders v. California, 386 U.S. 738 (1967), Cobb s attorney has filed a brief certifying that there are no meritorious issues for appeal adequacy of Cobb s Rule 11 hearings. but questioning the Cobb received notice of his right to file a pro se supplemental brief, but has failed to do so. In his pro se notice of appeal, however, Cobb asserted that he received ineffective assistance of counsel during his plea process, and that the district court erred in imposing a sentence above his Guidelines range. We affirm in part and dismiss in part. First, Cobb, through counsel, questions whether the district court sufficiently complied with the requirements of Rule 11 when accepting his pleas. Prior to accepting a guilty plea, a district court must conduct a plea colloquy in which it informs the defendant of, and determines that the defendant comprehends, the nature of the charge to which he is pleading guilty, any mandatory minimum penalty, the maximum possible penalty he faces, and the rights he is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b); United States v. DeFusco, 949 4 F.2d 114, 116 (4th Cir. 1991). The court must also determine whether there is a factual basis for the plea. F.2d at 120. 11, this DeFusco, 949 In reviewing the adequacy of compliance with Rule Court should accord deference to the trial court s decision as to how best to conduct the mandated colloquy with the defendant. Id. at 116. In the absence of a motion to withdraw a guilty plea, this court reviews the adequacy of a guilty plea pursuant to Rule 11 for plain error. See United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). We have thoroughly reviewed the record in this case and conclude that the district court substantially complied with the mandates of Rule 11 when accepting both of Cobb s guilty pleas. The record affirmatively shows there was a factual basis for his pleas, that he understood the constitutional rights he waived in pleading guilty, and that his pleas were knowing and voluntary. Accordingly, we affirm Cobb s convictions. Next, to the extent Cobb seeks to appeal his sentence, we conclude that we lack jurisdiction to consider his appeal. The district court sentenced Cobb in accordance with the sentencing agreement that he and the Government reached pursuant to Fed. appellate R. Crim. review of P. a 11(c)(1)(C). sentence, 18 The U.S.C. statute § governing 3742(c) (2006), limits the circumstances under which a defendant may appeal a sentence to which he stipulated 5 in a Rule 11(c)(1)(C) plea agreement to claims that his sentence was imposed in violation of law [or] was imposed as a result of an incorrect application of the sentencing guidelines. United States v. Sanchez, 146 F.3d 796, 797 & n.1 (10th Cir. 1998) (internal quotation marks omitted). Here, maximum of Cobb s twenty sentence years of was less than for imprisonment the even statutory a single violation of 18 U.S.C. § 2113(a), and his 180-month sentence was precisely what he and the Government agreed was appropriate in his case. Accordingly, review of his sentence is precluded by § 3742(c), and we dismiss Cobb s appeals as they relate to his sentence. Lastly, assistance appeal. are of we find counsel is that not Cobb s suitable for of ineffective review on direct Claims of ineffective assistance of counsel generally not cognizable conclusively on establishes direct appeal counsel s F.3d 424, 435 (4th Cir. unless objectively performance and resulting prejudice. 523 claim the record unreasonable United States v. Benton, 2008). Instead, ineffective assistance 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). The record before allegations us fails to offer any support 6 for Cobb s regarding his counsel s performance. We therefore decline to consider his ineffective assistance claim at this time. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. Accordingly, we affirm Cobb s convictions and dismiss his appeals to the extent that they challenge his sentence. court requires that counsel inform Cobb, in writing, This of the right to petition the Supreme Court of the United States for further review. If Cobb requests that a petition be filed, but counsel believes such a petition would be frivolous, counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Cobb. We dispense before the court with oral adequately argument presented because the the facts materials and legal contentions and argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART 7

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