United States v. William Cobb ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4241
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM EDWARD COBB,
Defendant - Appellant.
No. 11-4242
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM EDWARD COBB,
Defendant - Appellant.
No. 11-4246
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM EDWARD COBB,
Defendant - Appellant.
No. 11-4248
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM EDWARD COBB,
Defendant - Appellant.
No. 11-4249
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM EDWARD COBB,
Defendant - Appellant.
No. 11-4250
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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WILLIAM EDWARD COBB,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Charleston. Solomon Blatt, Jr., Senior
District Judge. (2:10-cr-00202-SB-1; 2:09-cr-00086-SB-1; 2:09-
cr-00060-SB-1; 2:09-cr-00056-SB-1; 2:09-cr-00053-SB-1; 9:07-cr-
00569-SB-1)
Submitted: October 26, 2011 Decided: November 17, 2011
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Steven M. Hisker, HISKER LAW FIRM, PC, Duncan, South Carolina,
for Appellant. Sean Kittrell, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
William Edward Cobb pled guilty in two separate Fed.
R. Crim. P. 11 hearings to a total of twenty-two counts of bank
robbery, in violation of 18 U.S.C. § 2113(a) (2006). He was
sentenced to concurrent terms of 180 months in prison. Cobb
appealed. In accordance with Anders v. California, 386 U.S. 738
(1967), Cobb’s attorney has filed a brief certifying that there
are no meritorious issues for appeal but questioning the
adequacy of Cobb’s Rule 11 hearings. Cobb received notice of
his right to file a pro se supplemental brief, but has failed to
do so. In his pro se notice of appeal, however, Cobb asserted
that he received ineffective assistance of counsel during his
plea process, and that the district court erred in imposing a
sentence above his Guidelines range. We affirm in part and
dismiss in part.
First, Cobb, through counsel, questions whether the
district court sufficiently complied with the requirements of
Rule 11 when accepting his pleas. Prior to accepting a guilty
plea, a district court must conduct a plea colloquy in which it
informs the defendant of, and determines that the defendant
comprehends, the nature of the charge to which he is pleading
guilty, any mandatory minimum penalty, the maximum possible
penalty he faces, and the rights he is relinquishing by pleading
guilty. Fed. R. Crim. P. 11(b); United States v. DeFusco, 949
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F.2d 114, 116 (4th Cir. 1991). The court must also determine
whether there is a factual basis for the plea. DeFusco, 949
F.2d at 120. “In reviewing the adequacy of compliance with Rule
11, this Court should accord deference to the trial court’s
decision as to how best to conduct the mandated colloquy with
the defendant.” Id. at 116. In the absence of a motion to
withdraw a guilty plea, this court reviews the adequacy of a
guilty plea pursuant to Rule 11 for plain error. See United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).
We have thoroughly reviewed the record in this case
and conclude that the district court substantially complied with
the mandates of Rule 11 when accepting both of Cobb’s guilty
pleas. The record affirmatively shows there was a factual basis
for his pleas, that he understood the constitutional rights he
waived in pleading guilty, and that his pleas were knowing and
voluntary. Accordingly, we affirm Cobb’s convictions.
Next, to the extent Cobb seeks to appeal his sentence,
we conclude that we lack jurisdiction to consider his appeal.
The district court sentenced Cobb in accordance with the
sentencing agreement that he and the Government reached pursuant
to Fed. R. Crim. P. 11(c)(1)(C). The statute governing
appellate review of a sentence, 18 U.S.C. § 3742(c) (2006),
limits the circumstances under which a defendant may appeal a
sentence to which he stipulated in a Rule 11(c)(1)(C) plea
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agreement to claims that “his sentence was imposed in violation
of law [or] was imposed as a result of an incorrect application
of the sentencing guidelines.” United States v. Sanchez, 146
F.3d 796, 797 & n.1 (10th Cir. 1998) (internal quotation marks
omitted).
Here, Cobb’s sentence was less than the statutory
maximum of twenty years of imprisonment for even a single
violation of 18 U.S.C. § 2113(a), and his 180-month sentence was
precisely what he and the Government agreed was appropriate in
his case. Accordingly, review of his sentence is precluded by
§ 3742(c), and we dismiss Cobb’s appeals as they relate to his
sentence.
Lastly, we find that Cobb’s claim of ineffective
assistance of counsel is not suitable for review on direct
appeal. Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal unless the record
conclusively establishes counsel’s “objectively unreasonable
performance” and resulting prejudice. United States v. Benton,
523 F.3d 424, 435 (4th Cir. 2008). Instead, ineffective
assistance claims should be raised in a motion brought pursuant
to 28 U.S.C.A. § 2255 (West Supp. 2011) in order to promote
sufficient development of the record. United States v.
Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). The record
before us fails to offer any support for Cobb’s allegations
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regarding his counsel’s performance. We therefore decline to
consider his ineffective assistance claim at this time.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
Accordingly, we affirm Cobb’s convictions and dismiss his
appeals to the extent that they challenge his sentence. This
court requires that counsel inform Cobb, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Cobb requests that a petition be filed, but
counsel believes 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 thereof was served on
Cobb. We dispense with oral argument because the materials
before the court adequately presented the facts and legal
contentions and argument would not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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