US v. Burns, (4th Cir. 2004)

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-4762 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus

JEFFREY THOMAS BURNS, Defendant - Appellant. Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Terrence W. Boyle, Chief

District Judge. (CR-03-2-BO)

Submitted: June 23, 2004 Decided: August 3, 2004

Before LUTTIG and WILLIAMS, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed in part, dismissed in part by unpublished per curiam

opinion.

Walter H. Paramore, III, Jacksonville, North Carolina, for

Appellant. Anne Margaret Hayes, Assistant United States Attorney,

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

- 2 - PER CURIAM: Jeffrey Thomas Burns pled guilty to being a felon in possession of a firearm, 18 U.S.C.A. §§ 922(g), 924(e) (West 2000

& Supp. 2004), and was sentenced to 180 months of imprisonment. On

appeal, counsel has filed a brief under Anders v. California

, 386 U.S. 738 (1967), alleging that there are no meritorious claims for

appeal but raising the following issues: whether (1) the Government breached its plea agreement with Burns; (2) BurnsÂ’ trial

counsel provided ineffective assistance; and (3) BurnsÂ’ sentence

was improperly enhanced because he was found to be an armed career

criminal under U.S. Sentencing Guidelines Manual

§ 4B1.4 (2002). Burns has filed a pro se supplemental brief rearguing the first two

issues. For the reasons that follow, we affirm in part and dismiss

in part. First, we do not find that the Government breached its plea agreement with Burns. Santobello v. New York

, 404 U.S. 257, 262 (1971). Burns alleges that the Government did not provide the

sentencing court with the full extent of his cooperation at the

sentencing hearing. Burns, however, fails to allege what

additional assistance he provided the Government, and it is a fair

inference from the record that the GovernmentÂ’s description of

BurnsÂ’ assistance at the sentencing hearing helped him obtain a sentence at the low end of his guideline range. Based on the

record and the arguments made before this court, it appears that

- 3 - Burns received the benefit of his bargain under the plea agreement.

United States v. Ringling

, 988 F.2d 504, 506 (4th Cir. 1993). Accordingly, we affirm this issue. Next, we do not find that Burns has established ineffective assistance of counsel that may be raised on direct

appeal. Generally, claims of ineffective assistance of counsel are

not cognizable on direct appeal; to allow for adequate development

of a record, a defendant must bring his claim in a 28 U.S.C. § 2255

  (2000) motion, unless the record conclusively establishes

ineffective assistance. United States v. Richardson

, 195 F.3d 192, 198 (4th Cir. 1999); United States v. King

, 119 F.3d 290, 295 (4th Cir. 1997). Burns has failed to meet this high burden.

Accordingly, we affirm. Finally, we find that Burns has waived his right to appeal his sentence enhancement for being an armed career criminal.

A review of his plea agreement and his Fed. R. Crim. P. 11 hearing

reveals that he knowingly and voluntarily waived his right to

appeal this issue. United States v. Broughton-Jones

, 71 F.3d 1143, 1146 (4th Cir. 1995); United States v. Wessells

, 936 F.2d 165, 167-68 (4th Cir. 1991). Accordingly, we dismiss this claim. We have ex amined the entire record in this case in accordance with the requirements of Anders

, and find no meritorious issues for appeal. Accordingly, we affirm in part, and dismiss in

part. This court requires that counsel inform his client, in

- 4 - 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. CounselÂ’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 IN PART

, DISMISSED IN PART

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