United States v. Woodard

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4125
CALVIN WOODARD,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CR-00-299-MJG)
Submitted: December 28, 2001
Decided: January 22, 2002
Before LUTTIG, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
G. Arthur Robbins, G. ARTHUR ROBBINS, L.L.C., Annapolis,
Maryland, for Appellant. Thomas M. Dibiagio, United States Attor-
ney, Bonnie S. Greenberg, Assistant United States Attorney, Balti-
more, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WOODARD
OPINION
PER CURIAM:
Calvin Woodard appeals his conviction by a jury of being a felon
in possession of a firearm, 18 U.S.C.A. § 922(g)(1) (West 2000), and
the ten-year sentence he received. Woodard alleges that the district
court abused its discretion in denying his pro se motion for a new trial
on the grounds of ineffective assistance of counsel, and contests the
district court’s application at sentencing of an enhanced base offense
level due to his prior conviction for a crime of violence and a further
enhancement for use of the firearm in connection with another felony
—an assault on his girlfriend. See U.S. Sentencing Guidelines Manual
§ 2K2.1(a)(4)(A), (b)(5) (2000). Woodard further contends that the
district court clearly erred in making an adjustment for obstruction of
justice. USSG § 3C1.1. We affirm the district court’s denial of a new
trial and we affirm the sentence. We grant Woodard’s request to file
a pro se supplemental brief and reply brief, and for leave to file sup-
plemental authority. We deny his pro se motion to remand the case
and deny as moot his motion for a ruling on his prior motions.
Woodard, a convicted felon, was arrested after his girlfriend placed
a 911 call from his parents’ house claiming that he had hit her with
a gun. As he drove up in response to the 911 call, the arresting officer
saw Woodard apparently placing something in the girlfriend’s car. A
firearm was later found in the car. A former girlfriend testified that
she had bought the gun for Woodard and that he attempted to per-
suade her to give false information to the police during the investiga-
tion.
Following his conviction, Woodard filed a pro se motion for new
trial alleging ineffective assistance of counsel. While claims of inef-
fective assistance of counsel may not be raised on direct appeal unless
the record conclusively demonstrates that counsel’s representation
was ineffective, see United States v. King, 119 F.3d 290, 295 (4th Cir.
1997), ineffective assistance claims asserted in a motion for new trial
pursuant to Rule 33 of the Federal Rules of Criminal Procedure and
ruled on by the district court may be asserted on appeal. United States
v. Russell, 221 F.3d 615, 619 (4th Cir. 2000). However, a motion for
new trial based on any ground other than newly discovered evidence
UNITED STATES v. WOODARD 3
must be made within seven days of the verdict. Fed. R. Crim. P. 33.
Woodard’s motion for new trial was filed more than seven days after
the verdict. In this circumstance, a defendant alleging ineffective
assistance may raise the issue on appeal only if the record conclu-
sively demonstrates ineffectiveness. Id. at n.5. Our review of the
materials submitted on appeal does not conclusively establish that
either of Woodard’s two attorney’s rendered ineffective assistance.
Moreover, the record reveals that Woodard’s claims of error concern-
ing his sentence are without substance.
We therefore affirm the conviction and sentence. We affirm the
district court’s denial of a new trial and we affirm the sentence. We
grant Woodard’s request to file a pro se supplemental brief and reply
brief, and for leave to file supplemental authority. We deny his pro
se motion to remand the case and deny as moot his motion for a ruling
on his prior motions. 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