United States v. Morgan , 128 F. App'x 318 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4413
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GEOFFREY EVERNARD MORGAN, a/k/a Geoffrey
Everward Morgan, a/k/a Chilly Morgan, a/k/a G.
E. Morgan, a/k/a Geoffrey Morgan, a/k/a
Geoffrey Evennard Morgan, a/k/a Godffrey
Morgan, a/k/a Geoffrey Evenand Mergan, a/k/a
Geoffrey E. Morgan,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-02-845)
Submitted: March 30, 2005 Decided: April 26, 2005
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kathrine H. Hudgins, KATHRINE HAGGARD HUDGINS, P.A., Columbia,
South Carolina, for Appellant. Lee Ellis Berlinsky, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Geoffrey Evernard Morgan appeals from the district
court’s order granting the Government’s motion under Fed. R. Crim.
P. 35(b) and reducing Morgan’s sentence for armed robbery from 210
months imprisonment to 174 months imprisonment, based on Morgan’s
assistance in a murder prosecution. Morgan’s attorney has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
raising a claim that Morgan’s original sentence violated Blakely v.
Washington, 124 S. Ct. 2531 (2004), but concluding that this court
has no jurisdiction to review the amended sentence and the Blakely
claim was waived by failure to appeal the original sentence.
Morgan has filed a pro se supplemental brief challenging the extent
of the reduction in sentence, which he submits would have been
larger if not for the ineffective assistance of his counsel.
The extent of a departure under Rule 35(b) is not
appealable, unless the sentence was imposed in violation of the
law. United States v. Pridgen, 64 F.3d 147, 149-50 (4th Cir.
1995). Because the extent of departure is left to the court’s
discretion under Rule 35(b), Morgan’s sentence did not violate the
law. Moreover, since ineffective assistance of counsel is not
conclusive on the record, such a claim is not cognizable on direct
appeal and should, instead, be brought in a 28 U.S.C. § 2255 (2000)
proceeding. United States v. James, 337 F.3d 387, 391 (4th Cir.
2003), cert. denied, 540 U.S. 1134 (2004).
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Moreover, any challenge to Morgan’s initial sentence was
waived by Morgan’s failure to appeal that sentence. See United
States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004), cert.
denied, 125 S. Ct. 197 (2004). Morgan cannot resurrect a
voluntarily forfeited direct appeal simply because the district
court subsequently resentenced him pursuant to a Rule 35(b)
proceeding. Regarding his amended sentence, the resentencing was
not based on the sentencing guidelines, and the court did not act
under the false impression that a reduction in sentence or the
extent thereof was mandated. Thus, we find that Morgan’s amended
sentence does not implicate Blakely.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We thus affirm Morgan’s amended 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 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
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