United States v. Okpalaugo , 56 F. App'x 129 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4512
OLIVER DOZIE OKPALAUGO,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(CR-01-421)
Submitted: January 13, 2003
Decided: January 29, 2003
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. Kevin Frank McDonald, OFFICE OF THE UNITED
STATES ATTORNEY, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. OKPALAUGO
OPINION
PER CURIAM:
Oliver Dozie Okpalaugo pled guilty to knowingly and without law-
ful authority using a means of identification of another person with
the intent to commit bank fraud, in violation of 18 U.S.C. §
1028(a)(7) (2000), and was sentenced to twelve months imprison-
ment. Okpalaugo’s attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no meritorious
issues on appeal, but raising three issues. Okpalaugo has filed a pro
se supplemental brief. We affirm.
Okpalaugo first challenges the adequacy of the Rule 11 hearing.
Because Okpalaugo did not move to withdraw his guilty plea in the
district court, we review the Rule 11 proceeding for plain error, see
United States v. Martinez, 277 F.3d 517, 527 (4th Cir.), cert. denied,
__ U.S. __, 123 S. Ct. 200 (2002), and find none.
Okpalaugo next contends the district court erred in determining his
sentencing guidelines range. We conduct a de novo review of legal
interpretation of the guidelines and review the underlying factual
findings for clear error. United States v. Williams, 977 F.2d 866, 869
(4th Cir. 1992); United States v. Daughtrey, 874 F.2d 213, 217 (4th
Cir. 1989). We find that the district court correctly applied the guide-
lines and properly sentenced Okpalaugo to twelve months imprison-
ment.
Okpalaugo also contends his counsel was ineffective in failing to
properly advise him and in failing to explain the plea agreement.
Claims of ineffective assistance of counsel are generally not cogniza-
ble on direct appeal. United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997). Rather, to allow for adequate development of the record,
a defendant must ordinarily bring such claims in a motion under 28
U.S.C.A. § 2255 (West Supp. 2000). King, 119 F.3d at 295. An
exception exists when the record conclusively establishes ineffective
assistance. Id. We find the record does not conclusively establish inef-
fective assistance and decline to consider Okpalaugo’s claims on
direct appeal.
UNITED STATES v. OKPALAUGO 3
In accordance with Anders, we have reviewed the entire record and
find no meritorious issues for appeal. We therefore affirm Okpalau-
go’s conviction and sentence. We have reviewed Okpalaugo’s pro se
supplemental brief and find his claims meritless. 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 requested
by the client to do so, counsel should prepare a timely petition for writ
of certiorari, unless counsel believes that such a petition would be
frivolous. In that case, counsel may move in 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 argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED