United States v. Latham ( 2007 )


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  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 07-4043
    UNITED STATES OF AMERICA,
    Plaintiff - Appellant,
    versus
    WALTEZ JEMEL LATHAM, a/k/a Taz,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    South Carolina, at Florence.   Terry L. Wooten, District Judge.
    (4:06-cr-00207-TLW-2)
    Submitted:   August 15, 2007                 Decided:   August 27, 2007
    Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Michael A. Meetze, Assistant Federal Public Defender, Florence,
    South Carolina, for Appellant. Arthur Bradley Parham, OFFICE OF
    THE UNITED STATES ATTORNEY, Florence, South Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Waltez Jemel Latham pled guilty pursuant to a written
    plea agreement to one count of conspiracy to possess with intent to
    distribute and to distribute cocaine base and cocaine (“Count 1”),
    as well as one count of possession of a firearm during and in
    relation to a drug trafficking crime (“Count 6”), in violation of
    
    18 U.S.C. § 924
    (c)(1)(A); 
    21 U.S.C. §§ 841
    (a)(1), (b)(1)(A),
    (b)(1)(B); 846 (2000).     Latham was sentenced by the district court
    to a total term of 180 months’ imprisonment.         Finding no error, we
    affirm.
    On appeal, counsel filed a brief pursuant to Anders v.
    California,   
    386 U.S. 738
       (1967),       asserting   there   were    no
    meritorious   grounds   for   appeal,    but    questioning   whether     the
    district court fully complied with the requirements of Fed. R.
    Crim. P. 11 as well as whether the sentence is reasonable.           Latham
    filed a pro se supplemental brief, asserting his counsel provided
    ineffective assistance.       The Government elected not to file a
    responsive brief.
    Because Latham did not seek to withdraw his guilty plea
    in the district court, any alleged Rule 11 error is reviewed by
    this court for plain error.      United States v. Martinez, 
    277 F.3d 517
    , 524-26 (4th Cir. 2002). To establish plain error, Latham must
    show that an error occurred, that the error was plain, and that the
    error affected his substantial rights. United States v. White, 405
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    F.3d 208, 215 (4th Cir. 2005).      We have reviewed the record and
    conclude the court committed no reversible error.
    Latham next contends that his sentence is unreasonable.
    The   district   court   appropriately   treated   the   Guidelines   as
    advisory, properly calculated and considered the advisory guideline
    range, and weighed the relevant 
    18 U.S.C. § 3553
    (a) (2000) factors.
    See United States v. Hughes, 
    401 F.3d 540
    , 546-47 (4th Cir. 2005).
    As Latham was subject to a statutory minimum of ten years for Count
    1, see 
    21 U.S.C. § 841
    (b)(1)(A), and a mandatory consecutive five
    year term for Count 6, see 
    18 U.S.C. § 924
     (c)(1)(A), the court
    properly determined that the statutory provisions, which exceeded
    the advisory guideline range, controlled. Thus, Latham’s 180-month
    sentence, which is the minimum required by statute, is reasonable.
    Finally, Latham contends his counsel was ineffective for
    failing to properly research his case.     An ineffective assistance
    of counsel claim is generally not cognizable on direct appeal, but
    should instead be asserted in a post-conviction motion under 
    28 U.S.C. § 2255
     (2000).     See United States v. Richardson, 
    195 F.3d 192
    , 198 (4th Cir. 1999). However, we have recognized an exception
    to the general rule when “it ‘conclusively appears’ from the record
    that defense counsel did not provide effective representation.”
    
    Id.
     (quoting United States v. Gastiaburo, 
    16 F.3d 582
    , 590 (4th
    Cir. 1994)).     Because the record does not conclusively establish
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    that counsel was ineffective, we conclude Latham’s claim is not
    cognizable on appeal.
    In accordance with Anders, we have reviewed the entire
    record in this case and have found no meritorious issues for
    appeal. Accordingly, we affirm the judgment of the district court.
    We deny Latham’s motion for appointment of new counsel. 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 petition would be frivolous, then
    counsel   may   move   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 argument because
    the facts and legal contentions are adequately presented in the
    materials before the court and argument would not aid in the
    decisional process.
    AFFIRMED
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