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United States v. Partlow, 08-4144 (2008)

Court: Court of Appeals for the Fourth Circuit Number: 08-4144 Visitors: 33
Filed: Dec. 02, 2008
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4144 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL OHARRY PARTLOW, JR., Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry F. Floyd, District Judge. (6:07-cr-00705-HFF-1) Submitted: November 19, 2008 Decided: December 2, 2008 Before TRAXLER, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Lora E. Collins, Assi
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                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4144


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

DANIEL OHARRY PARTLOW, JR.,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:07-cr-00705-HFF-1)


Submitted:    November 19, 2008             Decided:   December 2, 2008


Before TRAXLER, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Elizabeth Jean Howard, Assistant
United States Attorney, Greenville, South Carolina; Reginald I.
Lloyd, Assistant    United  States  Attorney,  Columbia,  South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Daniel       Partlow,   Jr.,     pled    guilty     without   a    plea

agreement to possession with intent to distribute 500 grams or

more of cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006).

Partlow was sentenced to sixty months in prison, the statutory

minimum.      See 21 U.S.C. § 841(b)(1)(B).                Partlow now appeals.

His attorney has filed a brief pursuant to Anders v. California,

386 U.S. 738
(1967), raising two issues but stating that there

are no meritorious issues for appeal.                   Partlow has filed a pro

se brief raising additional issues.              We affirm.

              In    the    Anders   brief,    counsel     questions    whether    the

district court complied with the requirements of Fed. R. Crim.

P. 11 but concludes that it did.                 Our review of the transcript

of   that   proceeding        discloses   full       compliance   with   the    Rule.

Counsel     also     questions      whether    the    sixty-month     sentence    was

reasonable but states that the district court committed no error

when it sentenced Partlow.             Our review of the record discloses

no procedural or substantive error.                    In this regard, we note

that    the        court     correctly       calculated     Partlow’s       advisory

Guidelines range of 60-71 months and considered the factors set

forth at 18 U.S.C. § 3553(a) (2006) prior to imposing sentence.

Partlow’s within-Guidelines sentence may be presumed reasonable.

See United States v. Go, 
517 F.3d 216
, 218 (4th Cir. 2008).

Partlow has not rebutted this presumption.                  We conclude that his

                                          2
sentence is reasonable.              See United States v. Gall, 
128 S. Ct. 586
, 597 (2007).

             The     claims    raised    in    Partlow’s      pro    se   brief    lack

merit.     First, his claim that counsel was ineffective is not

cognizable      on   direct    appeal    because    ineffectiveness         does     not

conclusively appear on the face of the record.                       He should raise

this claim, if at all, in a 28 U.S.C. § 2255 (2000) motion.                          See

United States v. Richardson, 
195 F.3d 192
, 198 (4th Cir. 1999).

Second, because Partlow’s valid guilty plea waives all prior

nonjurisdictional defects, see Tollett v. Henderson, 
411 U.S. 258
, 267 (1973), he has waived any right to contest the district

court’s denial of his motion to suppress evidence seized during

a traffic stop.

             We have examined the entire record in this case in

accordance with the requirements of Anders and have found no

meritorious issues for appeal.                 Accordingly, we affirm.             This

court requires 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, counsel may move in this court for leave to withdraw

from representation.          Counsel’s motion must state that a copy of

the motion was served on the client.                     The motion to appoint

substitute counsel is denied.                 We dispense with oral argument

                                          3
because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

                                                        AFFIRMED




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Source:  CourtListener

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