United States v. Dudley , 241 F. App'x 145 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4331
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KAREEM ABDUL DUDLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:05-cr-339-WLO-4)
Submitted: June 22, 2007 Decided: July 18, 2007
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Brian Michael Aus, Durham, North Carolina, for Appellant. Douglas
Cannon, Assistant United States Attorney, Angela Hewlett Miller,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kareem Abdul Dudley pled guilty to conspiracy to make,
possess, and utter counterfeit business checks, in violation of 18
U.S.C. §§ 371, 513(a) (2000). He was sentenced to sixty months’
imprisonment. On appeal, Dudley’s counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
asserting there are no meritorious issues for appeal, but
questioning whether the district court erred in denying Dudley an
adjustment for acceptance of responsibility. Dudley has filed a
pro se supplemental brief reasserting the issue raised by counsel
and alleging ineffective assistance of appellate counsel for filing
an Anders brief. After a thorough review of the record and finding
no reversible error, we affirm Dudley’s conviction and sentence.
Counsel claims that the district court erred in denying
Dudley an adjustment for acceptance of responsibility based on his
drug use while on bond pending sentencing. We review the district
court’s determination for clear error. United States v. Curtis,
934 F.2d 553, 557 (4th Cir. 1991). Dudley violated the terms of
his pretrial release on several occasions while on bond awaiting
sentencing, including testing positive for cocaine, which
eventually led to revocation of his pretrial release. The
continued use of drugs after conviction may be a basis for denial
of an adjustment for acceptance of responsibility. See United
States v. Kidd, 12 F.3d 30, 34 (4th Cir. 1993); United States v.
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Underwood, 970 F.2d 1336, 1339 (4th Cir. 1992). We find the
district court did not clearly err in finding Dudley’s continued
criminal conduct was inconsistent with acceptance of
responsibility.
Dudley argues in his pro se supplemental brief that
appellate counsel was ineffective for filing an Anders brief. An
allegation of ineffective assistance of counsel should not proceed
on direct appeal unless it appears conclusively from the record
that counsel’s performance was ineffective. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). We find no support
that such a claim “appears conclusively from the record.” Dudley
fails to identify any issues that appellate counsel should have
raised on appeal. Instead, he merely states that counsel erred in
failing to present any claims of error on appeal. However, counsel
did raise a potential claim of error on appeal, but properly
concluded that the claim was without merit. Because our review of
the record leads us to conclude that deficient performance is not
conclusively shown, Dudley’s ineffective assistance of counsel
claim is not cognizable on direct appeal.
As required by Anders, we have examined the entire record
and find no other meritorious issues for appeal. Therefore,
finding no error, we affirm Dudley’s conviction and sentence. We
also deny Dudley’s motions for appointment of counsel and for a
trial transcript. This court requires that counsel inform his
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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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