United States v. Bennett , 238 F. App'x 935 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4929
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRY JACKSON BENNETT,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:04-cr-00315)
Submitted: June 15, 2007 Decided: July 10, 2007
Before WILLIAMS, Chief Judge, TRAXLER, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
Johnny E. Watson, Sr., Columbia, South Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terry Jackson Bennett appeals his conviction and
235-month sentence following his guilty plea, pursuant to a plea
agreement, to one count of assaulting, resisting or impeding an
officer in violation of 18 U.S.C. §§ 111(a), (b) (West 1999 & Supp.
2006), and one count of possession with intent to distribute
cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)
(West 1999 & Supp. 2006). The Government filed a motion to dismiss
based upon the waiver of appellate rights to which Bennett agreed
as a part of his plea agreement.
We conclude that Bennett’s appellate waiver is valid and
encompasses all issues raised on appeal except his claim of
ineffective assistance of counsel. We have reviewed that claim and
determine that it does not “conclusively appear” on the record that
counsel was ineffective. See United States v. James, 337 F.3d 387,
391 (4th Cir. 2003). Such a claim is more properly raised in a
proceeding under 28 U.S.C. § 2255 (2000). Accordingly, we grant
the Government’s motion to dismiss with respect to issues covered
by the waiver, deny the motion with respect to the ineffective
assistance claim, and affirm as to the ineffective assistance of
counsel claim. We also deny Bennett’s motion to substitute
counsel. 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.
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DISMISSED IN PART, AFFIRMED IN PART
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