US v. Ellison Cooper, No. 13-4334 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4334 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ELLISON LAKELL COOPER, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, Chief District Judge. (4:12-cr-00520-TLW-1) Submitted: February 26, 2014 Before AGEE and Circuit Judge. FLOYD, Circuit Decided: Judges, and March 12, 2014 HAMILTON, Senior Affirmed in part; dismissed in part by unpublished per curiam opinion. Tracey C. Green, WILLOUGHBY & HOEFER, P.A., Columbia, South Carolina, for Appellant. Alfred William Walker Bethea, Jr., United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ellison Lakell Cooper appeals his conviction and 300month sentence imposed following his guilty plea, pursuant to a written Fed. R. Crim. P. 11(c)(1)(C) plea agreement, to one count of Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (2012), and one count of brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) (2012). Cooper s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal but questioning whether the district court complied with Rule 11 at Cooper s change of plea hearing, whether the district court erroneously denied Cooper s final motion to substitute counsel, whether the sentence may be challenged on appeal, and whether plea counsel was ineffective. Cooper filed a counsel pro se supplemental brief arguing appellate counsel were ineffective. to file a response brief. that plea and The Government has declined Following a careful review of the record, we affirm in part and dismiss in part. Prior to accepting a guilty plea, the district court, through colloquy with the defendant, must inform the defendant of, and determine that the defendant understands, the nature of the charges to which the plea is offered, any mandatory minimum penalty, the maximum penalties he faces, and the various rights he is relinquishing by pleading 2 guilty. Fed. R. Crim. P. 11(b)(1); see United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). defendant s The plea district is court voluntary, must is also ensure supported by a that the sufficient factual basis, and is not the result of force or threats. Fed. R. Crim. P. 11(b)(2), (3); DeFusco, 949 F.2d at 116, 119-20. Upon review of the record, we conclude that the district court complied with Rule 11 s requirements. Cooper and counsel next challenge the district court s denial of the motion to substitute counsel. ruling for abuse of discretion. F.3d 463, 466 (4th Cir. 2012). right to counsel absolute. of his We review this United States v. Horton, 693 While a criminal defendant has a own choosing, that right is not Powell v. Alabama, 287 U.S. 45, 52-53 (1932); Sampley v. Attorney Gen. of N.C., 786 F.2d 610, 612 (4th Cir. 1986). In particular, a defendant s right to choose his own counsel is limited so as not to deprive a court of its inherent power to control the administration of justice. United States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988); see United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006) ( [A] trial court[] [has] wide latitude in balancing the right to counsel of choice against the needs of fairness calendar. (citations omitted)). us to conclude discretion when that the it denied and against of its Our review of the record leads district court Cooper s 3 demands did final not request abuse its for new counsel. we note Among other factors considered by the district court that communication had not completely broken down between Cooper and counsel and that the motion was filed a mere two weeks before sentencing. Turning to Cooper s sentence, we note that Cooper and the Government stipulated to a sentence as provided by Fed. R. Crim. P. 11(c)(1)(C). Pursuant to 18 U.S.C. § 3742(a), (c) (2012), [w]here a defendant agrees to and receives a specific sentence, he may appeal the sentence only if it was (1) imposed in violation of the law, (2) imposed as a result of an incorrect application of the Guidelines, or (3) is greater than the sentence set forth in the plea agreement. United States v. Calderon, 2005) omitted). 428 F.3d Here, 928, the 932 (10th district court Cir. imposed (citations the specific sentence to which Cooper agreed, and the sentence did not exceed the statutory maximum for either conviction. Moreover, it could not have been imposed as a result of an incorrect application of the Guidelines 11(c)(1)(C) calculation because agreement of the it and was based not Guidelines on on the range. See the parties district United Rule court s States v. Brown, 653 F.3d 337, 339-40 (4th Cir. 2011); United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005). We therefore dismiss Cooper s appeal to the extent that he challenges the stipulated sentence. 4 Finally, counsel was Cooper and ineffective. counsel To prove question a claim whether of plea ineffective assistance of counsel, a defendant must show (1) that counsel s performance was deficient, and (2) performance prejudiced the defense. 466 U.S. 668, 687 (1984). that the deficient Strickland v. Washington, Moreover, we may address a claim of ineffective assistance on direct appeal only if the lawyer s ineffectiveness conclusively appears on the record. United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). We have thoroughly reviewed the record and conclude that Cooper has failed to demonstrate that ineffective conclusively appears on the record. assistance of counsel We therefore decline to address this argument 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 Cooper s conviction and dismiss the appeal to the extent Cooper challenges his sentence. This writing, of court the requires right to that petition United States for further review. counsel the inform Supreme Cooper, Court of in the If Cooper requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Cooper. 5 We dispense with oral argument because the facts and legal before contentions this court are and adequately argument presented will not in aid the the materials decisional process. AFFIRMED IN PART; DISMISSED IN PART 6
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