United States v. James Fitzgerald

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4819
JAMES LEON FITZGERALD,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-97-129-R)
Submitted: June 8, 1999
Decided: September 23, 1999
Before ERVIN,* NIEMEYER, and MOTZ,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Malcolm McL. Doubles, Salem, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Donald R. Wolthuis, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.
_________________________________________________________________
*Judge Ervin participated in this case but died prior to the time the
decision was filed. The decision is filed by a quorum of the panel pursu-
ant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
James Leon Fitzgerald appeals from the 180-month sentence
imposed following his guilty pleas to conspiracy to possess with the
intent to distribute and to distribute cocaine, 21 U.S.C.A. § 846 (West
Supp. 1998), and using or carrying a firearm during and in relation
to a drug trafficking offense, 18 U.S.C.A. § 924(c) (West Supp.
1999). Fitzgerald claims that the district court abused its discretion
when it denied his motion to withdraw his plea and his motion for the
appointment of new counsel and that his counsel provided ineffective
assistance of counsel.
We have thoroughly reviewed the record and find that the district
court did not abuse its discretion when it denied Fitzgerald's motion
to withdraw his plea. See United States v. Moore , 931 F.2d 245, 248
(4th Cir. 1991). We further find that Fitzgerald failed to demonstrate
that a total lack of communication existed between him and his attor-
ney such that his attorney could not adequately represent him at sen-
tencing. We therefore conclude that the district court did not abuse its
discretion when it refused to appoint new counsel. See United States
v. Morsley, 64 F.3d 907, 918 (4th Cir. 1995). We decline to address
on direct review his independent claim of ineffective assistance of
counsel. See United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994).
Accordingly, we affirm Fitzgerald's convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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