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United States v. Hill, 02-4424 (2003)

Court: Court of Appeals for the Fourth Circuit Number: 02-4424 Visitors: 7
Filed: Sep. 04, 2003
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 02-4424 MARK DAVE HILL, a/k/a E, a/k/a Earl, a/k/a Clarence Buckner, Defendant-Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, District Judge. (CR-00-398) Submitted: August 28, 2003 Decided: September 4, 2003 Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affir
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                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                  No. 02-4424
MARK DAVE HILL, a/k/a E, a/k/a
Earl, a/k/a Clarence Buckner,
                Defendant-Appellant.
                                       
           Appeal from the United States District Court
         for the District of South Carolina, at Charleston.
               Patrick Michael Duffy, District Judge.
                            (CR-00-398)

                      Submitted: August 28, 2003

                      Decided: September 4, 2003

       Before NIEMEYER and SHEDD, Circuit Judges, and
               HAMILTON, Senior Circuit Judge.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Jessica Salvini, SALVINI & BENNETT, L.L.C., Pickens, South Car-
olina, for Appellant. Rose Mary Parham, Assistant United States
Attorney, Florence, South Carolina, for Appellee.
2                        UNITED STATES v. HILL
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Mark Dave Hill appeals his conviction and 300-month sentence
after pleading guilty pursuant to a written plea agreement to conspir-
acy to distribute heroin in violation of 21 U.S.C. § 846 (2000). His
attorney has filed a brief pursuant to Anders v. California, 
386 U.S. 738
(1967), stating that there are no meritorious issues for appeal, but
asserting trial counsel was ineffective at sentencing for failing to
object to prior criminal history used to classify Hill as a career
offender; the district court erred in applying a four-level enhancement
to Hill’s base offense level for Hill’s role as a leader and organizer
in the conspiracy pursuant to U.S. Sentencing Guidelines Manual
§ 3B1.1(a) (2000); and the district court erred in sentencing Hill as a
career offender pursuant to USSG § 4B1.1. Hill was notified by his
attorney of his right to file a pro se supplemental brief and has elected
to do so. Finding no reversible error, we affirm.

   We first address Hill’s ineffective assistance of counsel claim. Inef-
fective assistance of counsel claims are not generally cognizable on
direct appeal. See United States v. Ford, 
88 F.3d 1350
, 1363 (4th Cir.
1996). Unless ineffective assistance of counsel "conclusively appears"
on the record, such claims should be raised collaterally and not on
direct appeal. 
Id. We find that
because ineffectiveness of counsel does
not conclusively appear on the record, Hill’s claims are more appro-
priately addressed in a 28 U.S.C. § 2255 (2000) motion filed in the
district court.

   Next, we find no merit in Hill’s claim that the district court erred
in finding him to be a leader or organizer in the conspiracy pursuant
to USSG § 3B1.1(a). We review the district court’s determination of
a defendant’s role in the offense for clear error. United States v. Per-
kins, 
108 F.3d 512
, 518 (4th Cir. 1997). We conclude that the sen-
tencing court did not err in adopting the presentence report’s findings
and denying Hill’s arguments relating to the enhancement.
                         UNITED STATES v. HILL                         3
   Finally, we are not persuaded by Hill’s argument that he was
improperly sentenced as a career offender. Since Hill did not object
at sentencing, we review this claim for plain error. Fed. R. Crim. P.
52(b); United States v. Olano, 
507 U.S. 725
, 731-32 (1993). We find
that Hill meets all the criteria of USSG § 4B1.1 and was properly sen-
tenced as a career offender.

   We have examined the entire record in this case in accordance with
the requirements of Anders and find no meritorious issues for appeal.
Accordingly, we affirm Hill’s conviction and sentence. We reject the
claims raised in Hill’s pro se supplemental brief as meritless.

   This court requires that counsel inform her client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client 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. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

                                                            AFFIRMED

Source:  CourtListener

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