United States v. Bivings ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4856
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERMAINE BIVINGS, a/k/a Bivo,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (CR-04-840)
Submitted: March 8, 2006 Decided: April 3, 2006
Before MICHAEL, DUNCAN, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Regan Alexandra Pendleton,
Assistant United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jermaine Bivings appeals his convictions and 216-month
sentence imposed after he pled guilty to conspiracy to possess with
intent to distribute more than five kilograms of cocaine and more
than fifty grams of crack (Count 1), in violation of 21 U.S.C.
§ 846 (2000); possession with intent to distribute a quantity of
cocaine and more than fifty grams of crack (Count 2), in violation
of 21 U.S.C. § 841(a)(1) (2000); use of a telephone to facilitate
the drug offense charged in Count 2 (Count 4), in violation of 21
U.S.C. § 843(b) (2000); and possession with intent to distribute
more than fifty grams of crack (Count 8), in violation of
§ 841(a)(1). Bivings’ counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), challenging the adequacy of the
plea colloquy but stating that, in his view, there are no
meritorious issues for appeal. Bivings has filed a pro se
supplemental brief. We affirm.
Counsel questions whether the district court complied
with Fed. R. Crim. P. 11 in accepting Bivings’ guilty plea.
Because Bivings did not move to withdraw his guilty plea,* we
review his challenge to the adequacy of the Rule 11 hearing for
plain error. United States v. Martinez, 277 F.3d 517, 525 (4th
Cir. 2002). We have carefully reviewed the transcript of the Rule
*
Bivings filed two motions to withdraw his guilty plea in the
district court but withdrew them at the sentencing hearing.
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11 hearing and find no plain error in the district court’s
acceptance of Bivings’ guilty plea. See United States v. DeFusco,
949 F.2d 114, 119-20 (4th Cir. 1991).
In his pro se supplemental brief, Bivings contends that
the district court erred by denying his motion for the appointment
of new counsel. Our review of the record convinces us that the
district court did not abuse its discretion in denying the motion.
See United States v. Reevey, 364 F.3d 151, 156 (4th Cir. 2004)
(stating standard of review and discussing factors courts consider
in ruling on motion). Finally, with regard to Bivings’ claim that
counsel provided ineffective assistance due to a conflict of
interest, we “may address [such claims] on direct appeal only if
the lawyer’s ineffectiveness conclusively appears from the record.”
United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006),
cert. denied, U.S. , 2006 WL 386973 (U.S. Feb. 21, 2006)
(No. 05-8667). Because we find no evidence of counsel’s
ineffectiveness on the record presented, we decline to review this
claim on direct appeal.
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm Bivings’ convictions and 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,
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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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