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 2004-08

United States v. Burns ( 2004 )


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  •                              UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4762
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEFFREY THOMAS BURNS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CR-03-2-BO)
Submitted:   June 23, 2004                 Decided:   August 3, 2004
Before LUTTIG and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, dismissed in part by unpublished per curiam
opinion.
Walter H. Paramore, III, Jacksonville, 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Unpublished opinions are not binding precedent in this circuit.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:
Jeffrey Thomas Burns pled guilty to being a felon in
possession of a firearm,
    18 U.S.C.A. §§ 922
    (g), 924(e) (West 2000
& Supp. 2004), and was sentenced to 180 months of imprisonment.            On
appeal, counsel has filed a brief under Anders v. California,
    386 U.S. 738
     (1967), alleging that there are no meritorious claims for
appeal    but   raising    the   following    issues:     whether   (1)   the
Government breached its plea agreement with Burns; (2) Burns’ trial
counsel provided ineffective assistance; and (3) Burns’ sentence
was improperly enhanced because he was found to be an armed career
criminal under U.S. Sentencing Guidelines Manual § 4B1.4 (2002).
Burns has filed a pro se supplemental brief rearguing the first two
issues.    For the reasons that follow, we affirm in part and dismiss
in part.
First, we do not find that the Government breached its
plea agreement with Burns.        Santobello v. New York,
    404 U.S. 257
    ,
262 (1971).     Burns alleges that the Government did not provide the
sentencing court with the full extent of his cooperation at the
sentencing      hearing.     Burns,    however,   fails   to   allege     what
additional assistance he provided the Government, and it is a fair
inference from the record that the Government’s description of
Burns’ assistance at the sentencing hearing helped him obtain a
sentence at the low end of his guideline range.                Based on the
record and the arguments made before this court, it appears that
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Burns received the benefit of his bargain under the plea agreement.
United States v. Ringling,
    988 F.2d 504
    , 506 (4th Cir. 1993).
Accordingly, we affirm this issue.
Next,    we     do   not     find    that   Burns   has    established
ineffective assistance of counsel that may be raised on direct
appeal. Generally, claims of ineffective assistance of counsel are
not cognizable on direct appeal; to allow for adequate development
of a record, a defendant must bring his claim in a
    28 U.S.C. § 2255
    (2000)    motion,    unless        the    record      conclusively     establishes
ineffective assistance. United States v. Richardson,
    195 F.3d 192
    ,
198 (4th Cir. 1999); United States v. King,
    119 F.3d 290
    , 295 (4th
Cir.    1997).      Burns    has    failed       to   meet   this    high   burden.
Accordingly, we affirm.
Finally, we find that Burns has waived his right to
appeal his sentence enhancement for being an armed career criminal.
A review of his plea agreement and his Fed. R. Crim. P. 11 hearing
reveals that he knowingly and voluntarily waived his right to
appeal this issue. United States v. Broughton-Jones,
    71 F.3d 1143
    ,
1146 (4th Cir. 1995); United States v. Wessells,
    936 F.2d 165
    ,
167-68 (4th Cir. 1991).          Accordingly, we dismiss this claim.
We have examined the entire record in this case in
accordance with the requirements of Anders, and find no meritorious
issues for appeal.        Accordingly, we affirm in part, and dismiss in
part.    This court requires that counsel inform his client, in
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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 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
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 IN PART,
DISMISSED IN PART
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