United States v. Atwood

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4354
RODGER THEODORE ATWOOD, II, a/k/a
Roger Theodore Atwood,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Lacy H. Thornburg, District Judge.
(CR-99-44)
Submitted: February 6, 2001
Decided: February 20, 2001
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
John McLeod Tutterow, THE LAW OFFICE OF JOHN MCLEOD
TUTTEROW, Asheville, North Carolina, for Appellant. Brian Lee
Whisler, OFFICE OF THE UNITED STATES ATTORNEY, Char-
lotte, North Carolina, for Appellee.
2 UNITED STATES v. ATWOOD
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Rodger Theodore Atwood II appeals his sentence for bank robbery,
aiding and abetting, in violation of 18 U.S.C.A. § 2113(a) (West
2000) and 18 U.S.C. § 2 (1994). Atwood’s attorney has filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967), raising
one issue, ineffective assistance of counsel, but stating that, in his
view, there are no meritorious grounds for appeal. Atwood has filed
a pro se supplemental brief augmenting his attorney’s ineffective
assistance claim and adding two additional issues, whether his appel-
late counsel provided ineffective assistance and whether his sentence
was illegal. We have reviewed the entire record and affirm Atwood’s
conviction and sentence.
Atwood contends that he received ineffective assistance of trial and
appellate counsel that resulted in an improper sentence. Claims of
ineffective assistance of counsel are generally not cognizable on
direct appeal. See United States v. King, 119 F.3d 290, 295 (4th Cir.
1997). Rather, to allow for adequate development of the record, fed-
eral prisoners must ordinarily pursue such claims in a motion under
28 U.S.C.A. § 2255 (West Supp. 2000). See United States v. Hoyle,
33 F.3d 415, 418 (4th Cir. 1994). An exception exists when the record
conclusively establishes ineffective assistance. See King, 119 F.3d at
295. Because our review of the record in this appeal does not conclu-
sively establish ineffective assistance of counsel, we conclude
Atwood’s ineffective assistance claims should be brought in a § 2255
proceeding.
Atwood also argues that the district court erred in ordering him to
pay full restitution. Atwood did not object to the order of restitution,
therefore we review for plain error. See United States v. Castner, 50
F.3d 1267, 1277 (4th Cir. 1995). Under the Mandatory Victims Resti-
tution Act of 1996, the district court was required to order the full
UNITED STATES v. ATWOOD 3
amount of restitution owed without considering Atwood’s economic
circumstances. See 18 U.S.C.A. § 3664(f)(1)(A) (West 2000). We
therefore find no plain error.
As required by Anders, we have examined the entire record and
find no meritorious issues for appeal. Accordingly, we affirm
Atwood’s conviction 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, 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