United States v. Ellison Cooper ( 2014 )

UNPUBLISHED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 Decided: March 12, 2014
Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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 300-
month 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 pro se supplemental brief arguing that plea counsel and
appellate counsel were ineffective. The Government has declined
to file a response brief. 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 guilty. Fed. R. Crim. P.
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11(b)(1); see United States v. DeFusco, 949 F.2d 114, 116 (4th
Cir. 1991). The district court must also ensure that the
defendant’s plea is voluntary, is supported by a 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. We review this
ruling for abuse of discretion. United States v. Horton, 693
F.3d 463, 466 (4th Cir. 2012). While a criminal defendant has a
right to counsel of his own choosing, that right is not
absolute. 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 and against demands of its
calendar.” (citations omitted)). Our review of the record leads
us to conclude that the district court did not abuse its
discretion when it denied Cooper’s final request for new
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counsel. Among other factors considered by the district court
we note 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, 428 F.3d 928, 932 (10th Cir. 2005) (citations
omitted). Here, the district court imposed 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 because it was based on the parties’ Rule
11(c)(1)(C) agreement and not on the district court’s
calculation of the Guidelines range. See United 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.
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Finally, Cooper and counsel question whether plea
counsel was ineffective. To prove a claim of ineffective
assistance of counsel, a defendant must show (1) “that counsel’s
performance was deficient,” and (2) “that the deficient
performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984). 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 assistance of counsel
conclusively appears on the record. 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 court requires that counsel inform Cooper, in
writing, of the right to petition the Supreme Court of the
United States for further review. 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.
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We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument will not aid the decisional
process.
AFFIRMED IN PART;
DISMISSED IN PART
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