United States v. Tallent

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4609
KENNETH EVAN TALLENT,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-98-143-V)
Submitted: June 8, 2001
Decided: October 19, 2001
Before WIDENER, WILKINS, and LUTTIG, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
Anthony G. Scheer, RAWLS & DICKINSON. P.A., Charlotte, North
Carolina, for Appellant. Kenneth Michel Smith, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
2 UNITED STATES v. TALLENT
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kenneth Evan Tallent appeals the twenty-four month sentence
imposed by the district court following his guilty plea to using and
aiding and abetting in the use of unauthorized access devices with the
intent to defraud, in violation of 18 U.S.C. §§ 2, 1029(a)(2) (1994).
Tallent’s counsel has filed a brief in accordance with Anders v. Cali-
fornia, 386 U.S. 738 (1967), and Tallent has filed a supplemental
brief. For the reasons explained below, we affirm in part, vacate in
part, and remand for further proceedings.
Tallent contends the district court erred in sentencing him to
twenty-four months’ incarceration and three years of supervised
release. After a thorough review of the record, including Tallent’s
plea agreement with the Government and the transcript of his hearing
pursuant to Fed. R. Crim. P. 11, we conclude Tallent knowingly and
intelligently waived his right to appeal his sentence. We therefore find
Tallent is barred from asserting his sentencing claim on appeal by vir-
tue of his valid appeal waiver.
Tallent also contends his counsel was ineffective in several
respects. Claims of ineffective assistance of counsel are generally not
cognizable on direct appeal. United States v. King, 119 F.3d 290, 295
(4th Cir. 1997). To allow for adequate development of the record,
claims of ineffective assistance of counsel must ordinarily be pursued
in a 28 U.S.C.A. § 2255 (West Supp. 2000) motion. United States v.
Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception to this general
rule obtains when the record conclusively establishes ineffective
assistance of counsel. King, 119 F.3d at 295. We find the record in
the instant case does not conclusively establish Tallent’s counsel was
ineffective. Therefore we do not address this issue on direct appeal.
Tallent may assert his claim in a § 2255 habeas motion, if he so
chooses.
UNITED STATES v. TALLENT 3
Tallent further contends the district court erred in ordering him to
pay $32,121.72 in restitution. Because Tallent did not object to the
restitution order at trial, this Court reviews the order for plain error.
See United States v. Ubakanma, 215 F.3d 421, 427 (4th Cir. 2000).
We find the district court properly ordered Tallent to pay
$32,121.72 in restitution pursuant to the Mandatory Victims Restitu-
tion Act, 18 U.S.C.A. §§ 3663A, 3664 (West 2000), and Tallent’s
plea agreement. However, we find the district court plainly erred in
ordering the restitution due in full immediately without making a fac-
tual finding keying the statutory factors to the type and manner of res-
titution ordered and determining that compliance is feasible. See
United States v. Dawkins, 202 F.3d 711, 716 (4th Cir.), cert. denied,
529 U.S. 1121 (2000). Therefore, we vacate Tallent’s restitution order
and remand for further factual findings.
Pursuant to Anders, we have reviewed the record and find no fur-
ther error. Accordingly, we affirm Tallent’s sentence of imprisonment
and term of supervised release. We vacate the restitution order, how-
ever, and remand for further proceedings on that aspect of the court’s
order. 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. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED