United States v. Thomas , 56 F. App'x 196 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4128
DENNIS THOMAS,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Robert C. Chambers, District Judge.
(CR-01-26)
Submitted: February 20, 2003
Decided: February 28, 2003
Before LUTTIG, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Edward M. Hall, LAW OFFICE OF EDWARD HALL, Morgantown,
West Virginia, for Appellant. Kasey Warner, United States Attorney,
John L. File, Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. THOMAS
OPINION
PER CURIAM:
Dennis Thomas was convicted by a jury of possession with intent
to distribute heroin, 21 U.S.C. § 841 (2000), and sentenced to forty-
one months imprisonment, followed by three years of supervised
release. Thomas’ attorney has filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967), addressing whether: (1) the dis-
trict court abused its discretion by forbidding Thomas from presenting
evidence of "good motive;" (2) the district court committed reversible
error when it refused to continue the trial in order to allow Thomas
to investigate further an entrapment defense; and (3) Thomas was
denied effective assistance of counsel. Counsel concedes, however,
that there are no meritorious issues for appeal. Although informed of
his right to file a supplemental pro se brief, Thomas has not done so.
In April 1998, an inmate at FCI-Beckley informed the FBI that
Thomas, then a chaplain at FCI-Beckley, had smuggled marijuana
and other items into the prison where Thomas had previously been
assigned. After an investigation, a controlled purchase was arranged
between Thomas and an undercover police officer. Thomas was
arrested after receiving a package of heroin and $6000 in cash, as
arranged during recorded telephone conversations.
Thomas first contends that the district court erred in excluding the
admission of any evidence that he had a "good motive" for his con-
duct; i.e., that he was acting on the belief that he was helping investi-
gate criminal activity in the prison. This court has explicitly rejected
any "good motive" defense to a violation of 21 U.S.C. § 841(a).
United States v. Fuller, 162 F.3d 256, 261 (4th Cir. 1998); see United
States v. Matthews, 209 F.3d 338 (4th Cir. 2000).
Thomas next contends that the district court erred in denying his
motion for a continuance to allow him to further investigate an
entrapment defense. In denying Thomas’ motion, the district court
found that Thomas had had ample time—more than eight months—to
investigate all possible defenses and that his attorney had already con-
sidered an entrapment defense and concluded that it was inapplicable.
Based on these findings, we cannot say that the district court abused
UNITED STATES v. THOMAS 3
its discretion in denying a continuance. United States v. Moore, 27
F.3d 969, 973 (4th Cir. 1994) (providing standard).
Finally, Thomas claims that he was denied effective assistance of
counsel. Claims of ineffective assistance are generally not cognizable
on direct appeal. See United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997). Rather, such a claim is more properly addressed in a col-
lateral proceeding in which counsel has the opportunity to respond to
the allegations against him. United States v. DeFusco, 949 F.2d 114,
120-21 (4th Cir. 1991). An ineffective assistance of counsel claim
may be brought, however, when the record conclusively establishes
counsel’s representation was constitutionally ineffective. King, 119
F.3d at 295. We find that the record does not conclusively establish
that Thomas’ counsel rendered constitutionally ineffective assistance.
In accordance with the requirements of Anders, we have examined
the entire record in this case and find no meritorious issues for appeal.
Accordingly, we affirm Thomas’ sentence. 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 the client
requests that a petition be filed, but counsel believes that such a peti-
tion 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 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