United States v. Cummings , 158 F. App'x 412 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4165
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PAMMY GAIL CUMMINGS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-02-72-FO)
Submitted: November 18, 2005 Decided: December 13, 2005
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
James D. Williams, Jr., LAW OFFICES OF JAMES D. WILLIAMS, JR.,
P.A., Durham, 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Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Pammy Gail Cummings appeals her sentence of 360 months of
imprisonment imposed after she pled guilty, pursuant to a plea
agreement, to one count of conspiracy to distribute and to possess
with intent to distribute at least 500 grams of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), 846 (2000), and one count of
possession of a firearm after having been convicted of a crime
punishable by more than one year of imprisonment, in violation of
18 U.S.C. § 922(g) (2000). The Government has moved to dismiss
Cummings’s appeal based upon a waiver of appellate rights in her
plea agreement.
We deny the Government’s motion to dismiss. We conclude,
however, that Cummings waived the right to proceed with each of her
claims on appeal, except her claims of denial of counsel of her
choosing and ineffective assistance of counsel. Cummings asserts
that her counsel withdrew from representation as a result of
pressure exerted by the Government. The Government sought to
disqualify counsel based upon a possible conflict of interest.
Before the issue was squarely raised before the district court,
however, counsel withdrew and another attorney assumed the
representation. Although a criminal defendant is entitled to be
represented by counsel of her choice, that right is not absolute,
and may be overcome by a conflict of interest. United States v.
Howard, 115 F.3d 1151, 1155 (4th Cir. 1997). Our review of the
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record leads us to conclude that the Government’s actions were not
improper, and Cummings’s claim is without merit.
Cummings also asserts that counsel was ineffective in
failing to raise a Sixth Amendment objection at sentencing. We
have reviewed Cummings’s claim and determine that it does not
“conclusively appear[]” on the record that counsel was ineffective.
United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999)
(internal quotation marks omitted). Cummings may raise her
ineffective assistance claim in proceedings under 28 U.S.C. § 2255(2000).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Cummings’s conviction and sentence.
This court requires that counsel inform Cummings, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Cummings 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 Cummings. 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.
DISMISSED IN PART
AND AFFIRMED IN PART
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