United States v. Jenkins

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4928
LARRY JENKINS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CR-96-358)
Submitted: April 29, 1999
Decided: May 7, 1999
Before WILLIAMS, TRAXLER, and KING, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
William N. Nettles, Columbia, South Carolina, for Appellant. Scarlett
Anne Wilson, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Larry Jenkins was charged in a superseding indictment with con-
spiracy to distribute and to possess with intent to distribute controlled
substances. In the midst of trial, Jenkins entered a guilty plea and was
sentenced to a term of seventy-one months imprisonment. His attor-
ney has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), raising one issue but stating that, in his view, there
are no meritorious issues for appeal. Jenkins has filed a pro se supple-
mental brief raising several additional issues--to which the govern-
ment has responded--and a number of replies to the government's
response. After a thorough review of the record and the materials sub-
mitted on appeal, we affirm the conviction and the sentence. We grant
Jenkins' motions to file a pro se formal brief, to add an exhibit to his
pro se "Supplemental Respond Brief," and to add an exhibit to his ini-
tial pro se brief. We grant the government's motion to file a transcript
of the change of plea hearing.
Counsel presents as a potentially meritorious issue the adequacy of
the district court's compliance with Rule 11 of the Federal Rules of
Criminal Procedure in accepting Jenkins' guilty plea. Our review of
the Rule 11 hearing transcript reveals that the district court fully com-
plied with the Rule. In his pro se brief, Jenkins contends that his attor-
ney's representation was ineffective in counseling a guilty plea, that
his attorney altered the plea agreement negotiated by prior counsel
without his knowledge, that the indictment was defective, that the dis-
trict court failed to ensure that he understood the charge before
accepting his guilty plea, and that the factual basis for the guilty plea
was inadequate. Claims of ineffective assistance should be raised by
a motion under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998),
unless it "conclusively appears" from the record that counsel did not
provide effective assistance. United States v. Fisher, 477 F.2d 300,
302 (4th Cir. 1973); see also United States v. Smith, 62 F.3d 641, 650
(4th Cir. 1995). In this case, it does not conclusively appear from the
record on appeal that Jenkins received ineffective assistance of coun-
sel. Consequently, this claim is more properly raised in a § 2255
motion.
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In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm the convic-
tion 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 represen-
tation. Counsel'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 record and briefs, and oral argu-
ment would not aid the decisional process.
AFFIRMED
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