Filed: Apr. 30, 2009
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4231 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VINCENT SINCLAIR, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:07-cr-00015-BO-1) Submitted: March 25, 2009 Decided: April 30, 2009 Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4231 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VINCENT SINCLAIR, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:07-cr-00015-BO-1) Submitted: March 25, 2009 Decided: April 30, 2009 Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion...
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4231
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VINCENT SINCLAIR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:07-cr-00015-BO-1)
Submitted: March 25, 2009 Decided: April 30, 2009
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Robert J. McAfee, MCAFEE LAW, P.A., New Bern, North Carolina,
for Appellant. Anne Margaret Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vincent Sinclair pled guilty pursuant to a written
plea agreement to conspiracy to possess with intent to
distribute cocaine, conspiracy to kidnap, and using a firearm
during and in relation to a crime of violence, in violation of
18 U.S.C. §§ 924(c)(1)(A), 1201(a)(1); 21 U.S.C. § 846 (2006).
Sinclair was sentenced to a total of 413 months’ imprisonment.
Finding no error, we affirm.
Counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he asserts there are
no meritorious issues for appeal but questions whether the
district court erred in denying the motion to withdraw the
guilty plea and whether trial counsel provided ineffective
assistance. Sinclair filed a pro se supplemental brief, and we
grant his motion to amend the pro se brief, joining in counsel’s
assertions and additionally contending that: (1) his waiver of
indictment failed to comply with Fed. R. Crim. P. 7; (2) the
Fed. R. Crim. P. 11 hearing was inadequate; (3) his residence
was searched in violation of the Fourth Amendment; (4) the
district court erred in failing to inquire into counsel’s
conflict of interest; (5) his sentence is unreasonable because
it is disparate to sentences received by other involved
defendants; and (6) the § 924(c) offense was improperly
predicated on the conspiracy to kidnap count.
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Sinclair and appellate counsel initially question
whether the district court erred in denying the motion to
withdraw the guilty plea. A defendant may withdraw a guilty
plea prior to sentencing if he “can show a fair and just reason
for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B).
In determining whether a defendant will be permitted to withdraw
his guilty plea, a district court should consider:
(1) whether the defendant has offered credible
evidence that his plea was not knowing or not
voluntary, (2) whether the defendant has credibly
asserted his legal innocence, (3) whether there has
been a delay between the entering of the plea and the
filing of the motion, (4) whether defendant has had
close assistance of competent counsel, (5) whether
withdrawal will cause prejudice to the government, and
(6) whether it will inconvenience the court and waste
judicial resources.
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).
The district court’s denial of a motion to withdraw
the guilty plea is reviewed for abuse of discretion. United
States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). We
closely scrutinize the Rule 11 colloquy and attach a strong
presumption that the plea is final and binding if the Rule 11
hearing is adequate. United States v. Lambey,
974 F.2d 1389,
1394 (4th Cir. 1992) (en banc). We have reviewed the Rule 11
hearing and conclude that it was adequate. Moreover, because
Sinclair has failed to overcome the presumption that his plea is
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final and binding, we conclude the district court did not abuse
its discretion in denying the motion to withdraw.
Sinclair and appellate counsel also contend that trial
counsel provided ineffective assistance. An ineffective
assistance of counsel claim generally is not cognizable on
direct appeal, but should instead be asserted in a post-
conviction motion under 28 U.S.C.A. § 2255 (West Supp. 2008).
See United States v. Richardson, 195 F.3d 192, 198 (4th Cir.
1999). However, we have recognized an exception to the general
rule when “it ‘conclusively appears’ from the record that
defense counsel did not provide effective representation.” Id.
(quoting United States v. Gastiaburo,
16 F.3d 582, 590 (4th Cir.
1994)). Because the record does not conclusively establish that
counsel was ineffective, the claim is not cognizable on appeal.
We have carefully considered the additional claims
raised in the pro se supplemental brief, as amended, in light of
the applicable legal standards, and find the claims to be
without merit. Further, in accordance with Anders, we have
reviewed the entire record in this case and have found no
meritorious issues for appeal. Accordingly, we affirm the
judgment of the district court.
This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the
United States for further review. If the client requests that a
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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 argument 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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