United States v. Jermaine Whiteside

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4733
JERMAINE ERIC WHITESIDE,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4734
JERMAINE ERIC WHITESIDE,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Spartanburg.
G. Ross Anderson, Jr., District Judge.
(CR-99-686-GRA, CR-98-904-GRA)
Submitted: March 10, 2000
Decided: July 11, 2000
Before MICHAEL and MOTZ, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Leesa Washington, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. William Corley Lucius, Assistant
United States Attorney, Greenville, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Jermaine Eric Whiteside appeals his conviction and sentence after
a guilty plea to bank fraud in violation of 18 U.S.C. § 1344 (1994)
(No. 99-4734), and the district court's revocation of a previously
imposed term of supervised release (No. 99-4733). Whiteside's attor-
ney has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), raising three issues but stating that, in her view,
there are no meritorious grounds for appeal. Whiteside has filed a pro
se supplemental brief raising one additional issue, ineffective assis-
tance of counsel. Finding no reversible error, we affirm.
Whiteside first questions whether the district court conducted a
proper guilty plea colloquy in accordance with Fed. R. Crim. P. 11.
Following a de novo review of the entire record, we conclude that the
district court complied with all the mandates of Rule 11 in accepting
Whiteside's guilty plea. See Fed. R. Crim. P. 11; United States v.
Goins, 51 F.3d 400, 402 (4th Cir. 1995) (providing standard).
Next, Whiteside raises the issue of whether his sentence was prop-
erly calculated. We have considered Whiteside's claim and find it
meritless. We find no plain error in the calculation of Whiteside's
sentence because it was properly computed under the Sentencing
Guidelines.
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Whiteside also questions whether the district court properly com-
plied with the requirements of 18 U.S.C.A. § 3583 (West 1984 &
Supp. 1999) in revoking his previously imposed term of supervised
release. Because the district court revoked Whiteside's supervised
release nearly nine months after its expiration, Whiteside contends
that the court no longer had jurisdiction over this matter. Jurisdiction
is a question of law subject to de novo review. See United States v.
Barton, 26 F.3d 490, 491 (4th Cir. 1994). This court specifically
addressed this issue in Barton, holding that"courts retain jurisdiction
to hold hearings related to revocation of supervised release for a rea-
sonable period after the term of release expires when a petition charg-
ing a violation of the conditions of supervised release is filed during
the period of supervised release." Id.; see also 18 U.S.C.A. § 3583(i)
(West Supp. 1999); United States v. Neville, 985 F.2d 992, 994-99
(9th Cir. 1993).
Although a nine month delay is certainly significant, we find that
Whiteside's revocation hearing was not unreasonably delayed. First,
Whiteside failed to appear at a pretrial conference on the bank fraud
charges on January 21, 1999. The district court issued a bench war-
rant on February 22, 1999, and Whiteside remained a fugitive until
May 10, 1999. Second, delaying Whiteside's revocation hearing until
the underlying federal charges of bank fraud were resolved helped to
conclusively establish his violation of supervised release. Third,
Whiteside failed to request an earlier resolution of his supervised
release violation. Fourth, the paperwork transferring jurisdiction from
the Middle District of Alabama was not completed until June 1, 1999.
Finally, we find that Whiteside failed to demonstrate that he was prej-
udiced by the delay. See United States v. Rasmussen, 881 F.2d 395,
398 (7th Cir. 1989) (applying similar factors to a thirteen month delay
before a revocation of parole hearing). Accordingly, we find that the
district court retained jurisdiction after the expiration of Whiteside's
supervised release term and that Whiteside's claim is without merit.
In his pro se supplemental brief, Whiteside contends that he
received ineffective assistance of counsel, presumably for counsel's
failure to pursue a prompt revocation hearing prior to the resolution
of the bank fraud charges. 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
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development of the record, Whiteside must bring his claim in a
motion under 28 U.S.C.A. § 2255 (West Supp. 1999). 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 review of the record in this appeal
does not conclusively establish ineffective assistance of counsel, we
find that Whiteside's claim is without merit.
As required by Anders, we have examined the entire record and
find no other meritorious issues for appeal. Accordingly, we affirm
Whiteside's conviction and sentence for bank fraud (No. 99-4734),
and the district court's revocation of his previously imposed term of
supervised release (No. 99-4733). This court requires that counsel
inform her 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
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