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 2005-12

United States v. Cockerham , 160 F. App'x 307 ( 2005 )


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  •                             UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4374
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEFF COCKERHAM,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville.   Jackson L. Kiser, Senior
District Judge. (CR-03-74)
Submitted: December 22, 2005              Decided:   December 28, 2005
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Mark T. Williams, WILLIAMS, MORRISON, LIGHT & MOREAU, Danville,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Anthony P. Giorno, Assistant United States Attorney, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jeff Cockerham appeals the district court’s judgment
entered pursuant to his guilty plea to conspiracy to possess with
intent to distribute and to distribute five or more grams of
methamphetamine, in violation of
    21 U.S.C. §§ 841
    (a)(1), 846
(2000), and possession of a firearm in furtherance of a drug
trafficking offense.      Cockerham’s attorney has filed a brief in
accordance    with   Anders   v.   California,
    386 U.S. 738
       (1967),
asserting that the evidence was insufficient to support the firearm
conviction.     In supplemental briefs, Cockerham contends that his
130-month sentence is plainly erroneous under United States v.
Booker,
    543 U.S. 220
     (2005), and that counsel provided ineffective
assistance.    Because Cockerham’s plea agreement contained a waiver
of his right to appeal these issues, we dismiss the appeal.
A defendant may waive his right to appeal his sentence as
part of a plea agreement.      United States v. Wiggins,
    905 F.2d 51
    ,
53 (4th Cir. 1990).      The waiver must be knowing and voluntary.
United States v. Brown,
    232 F.3d 399
    , 403 (4th Cir. 2000); United
States v. Wessells,
    936 F.2d 165
    , 168 (4th Cir. 1991).          This court
reviews de novo the validity of a waiver.         United States v. Marin,
    961 F.2d 493
    , 496 (4th Cir. 1992).               In his plea agreement,
Cockerham waived his right to appeal “as to any and all issues in
this case.”     A close review of the Fed. R. Crim. P. 11 colloquy
reveals that the district court expressly questioned Cockerham
- 2 -
about the waiver of his appellate rights.          Cockerham assured the
court that he understood the terms of his plea agreement and he
entered into it freely.     Accordingly, we conclude that Cockerham’s
waiver was knowing and voluntary.       See Brown,
    232 F.3d at 403
    .
Cockerham’s challenge to the sufficiency of the evidence
is barred by his plea and by his appeal waiver.         See
    id. at 402-03
    ;
United    States   v.   Willis,
    992 F.2d 489
        (4th    Cir.   1993).
Additionally, his challenge to his sentence under Booker is also
barred by the appeal waiver.       See United States v. Johnson,
    410 F.3d 137
    , 151-53 (4th Cir.), cert. denied,
    126 S. Ct. 461
     (2005);
United States v. Blick,
    408 F.3d 162
    , 171-73 (4th Cir. 2005).
Finally, Cockerham asserts that his attorney provided
ineffective   assistance.     Claims    of   ineffective       assistance   of
counsel are not cognizable on direct appeal unless the record
conclusively establishes ineffective assistance.          United States v.
Richardson,
    195 F.3d 192
    , 198 (4th Cir. 1999).           Our review of the
record reveals that Cockerham has failed to meet the high burden
necessary to raise ineffective assistance of counsel on direct
appeal.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal.    We therefore dismiss the appeal.            We deny Cockerham’s
motion to relieve counsel and to appoint new counsel.             This court
requires that counsel inform his client, in writing, of his right
- 3 -
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 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.
DISMISSED
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