United States v. Ross ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4718
ROBERT KEITH ROSS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-00-31-V)
Submitted: March 6, 2003
Decided: March 17, 2003
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Jeffrey B. Welty, POYNER & SPRUILL, L.L.P., Raleigh, North Car-
olina, for Appellant. Gretchen C.F. Shappert, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. ROSS
OPINION
PER CURIAM:
Robert Keith Ross appeals his sentence imposed after his guilty
plea to being a felon in possession of a firearm. In his plea agreement,
Ross waived his right to appeal his conviction or sentence, except that
he reserved the right to appeal based on claims of ineffective assis-
tance or prosecutorial misconduct. Ross’s attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), raising
two claims of ineffective assistance of counsel based on failure to
object to the calculation of Ross’s criminal history. Ross has filed a
pro se supplemental brief augmenting his attorney’s claims. We have
reviewed the entire record and affirm Ross’s conviction and sentence.
Claims of ineffective assistance of counsel are generally not cogni-
zable on direct appeal. United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997). Rather, to allow for adequate development of the record,
federal prisoners must ordinarily pursue such claims in a motion
under 28 U.S.C. § 2255 (2000). United States v. Hoyle, 33 F.3d 415,
418 (4th Cir. 1994). An exception exists when the record conclusively
establishes ineffective assistance. King, 119 F.3d at 295. Because our
review of the record in this appeal does not conclusively establish
ineffective assistance of counsel, we conclude Ross’s ineffective
assistance claims should be brought in a § 2255 proceeding.
As required by Anders, we have examined the entire record and
find no meritorious issues for appeal. Accordingly, we affirm Ross’s
conviction and sentence. The court requires that counsel inform his
client, in writing, of his right to petition the Supreme Court of the
United States for further review. Thus, we deny counsel’s motion to
withdraw at this time. If Ross requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then counsel
may renew his motion at that time. Counsel’s motion must state that
a copy was served on the client. 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.
AFFIRMED