United States v. Young ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4133
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH LOUIS YOUNG, III,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., Senior
District Judge. (6:07-cr-00113-GRA-1)
Submitted: November 12, 2009 Decided: January 14, 2010
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Daniel K. Dorsey, Washington, D.C., for Appellant. W. Walter
Wilkins, United States Attorney, E. Jean Howard, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This case is before us after resentencing on remand.
We earlier affirmed Joseph Louis Young, III’s conviction
pursuant to his guilty plea to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)
(2006), one count of possession with intent to distribute
marijuana and crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B) (2006), and one count of possession of a
firearm during a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A) (2006). However, we vacated his sentence
and remanded for resentencing after finding procedural error in
the sentence. United States v. Young, 296 F. App’x 314 (4th
Cir. 2008) (No. 08-4050).
On remand, the district court sentenced Young to 262
months’ imprisonment. Young filed a timely notice of appeal.
Counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), in which he states that he has found no
meritorious issues for appeal but argues that the district court
constructively amended the indictment. In his pro se
supplemental brief, Young challenges the validity of his guilty
plea and alleges ineffective assistance of appellate counsel.
We find the issue raised by counsel and Young’s pro se
challenge to his guilty plea to be foreclosed by the mandate
rule. The mandate rule bars “relitigation of issues expressly
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or impliedly decided by the appellate court,” as well as “issues
decided by the district court but foregone on appeal.” United
States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). Because we
affirmed Young’s conviction in his first appeal, he may not
challenge the conviction in this appeal.
In his pro se supplemental brief, Young claims that
appellate counsel rendered ineffective assistance during the
first appeal. Claims of ineffective assistance of counsel are
generally not cognizable on direct appeal. See United States v.
King, 119 F.3d 290, 295 (4th Cir. 1997). Rather, to allow for
adequate development of the record, a defendant must bring such
claims in a 28 U.S.C.A. § 2255 (West Supp. 2009) motion. See
id.; United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994).
An exception exists where the record conclusively establishes
ineffective assistance. United States v. Richardson, 195 F.3d
192, 198 (4th Cir. 1999); King, 119 F.3d at 295. Because the
record does not conclusively show that Young’s counsel was
ineffective, we decline to consider Young’s claim 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 Young’s conviction and sentence. This court
requires that counsel inform Young, in writing, of the right to
petition the Supreme Court of the United States for further
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review. If Young 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 Young. 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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