US v. James Parson, No. 10-4665 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4665 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES MATTHEW PARSONS, a/k/a Prudy, a/k/a Pretty, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:07-cr-00008-RLV-DSC-1) Submitted: June 7, 2011 Decided: June 15, 2011 Before DUNCAN, AGEE, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Randolph M. Lee, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Matthew Parsons pled guilty, pursuant to a written plea agreement, to conspiracy to possess with intent to distribute cocaine base and cocaine, in violation of 21 U.S.C. § 846 (2006), and using and carrying one or more firearms in furtherance U.S.C. of a drug § 924(c)(1) trafficking (2006). The crime, in district violation court of granted 18 the Government s motion for departure pursuant to U.S. Sentencing Guidelines Manual § 5K1.1 (2007), and sentenced Parsons to 270 months imprisonment. Finding no error, we affirm. Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he notes that Parsons generally waived his right to appeal in the plea agreement but questions whether defense assistance at sentencing. counsel provided ineffective Parsons was notified of his right to file a pro se supplemental brief, but he has not done so. The Government elected not to file a responsive brief. Appellate court counsel, who counsel has contends been that replaced on Parsons s district appeal, provided Because the Government has not sought enforcement of the appellate waiver, we are not precluded from reviewing this appeal. United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (stating that, if Anders brief is filed in case with appeal waiver, Government s failure to respond allow[s] this court to perform the required Anders review ). 2 ineffective assistance at sentencing by failing to object to the district court s explanation of the sentence. assistance direct of appeal counsel but claim instead generally should be is An ineffective not cognizable asserted in a on post- conviction motion under 28 U.S.C.A. § 2255 (West Supp. 2010). See United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). We may address a claim of ineffective assistance on direct appeal only if counsel s appears from the record. 233, 239 (4th Cir. ineffectiveness conclusively United States v. Baldovinos, 434 F.3d 2006). Because the record does not conclusively establish that defense counsel was ineffective, the claim is not cognizable on direct appeal. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. court. Accordingly, we affirm the judgment of the district This court requires that counsel inform his client, in writing, of his right to petition United States for further review. 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 because the facts 3 and legal are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4
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