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United States v. Norford , 77 F. App'x 191 ( 2003 )


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  •                          UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.                             No. 03-4167
DANE BRUNELL NORFORD,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at New Bern.
Malcolm J. Howard, District Judge.
(CR-02-39-HO)
Submitted: September 30, 2003
Decided: October 9, 2003
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Camille M. Davidson, THE FULLER LAW FIRM, P.C., Charlotte,
North Carolina, for Appellant. Anne Margaret Hayes, Assistant
United States Attorney, Ethan Ainsworth Ontjes, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appel-
lee.
2                     UNITED STATES v. NORFORD
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Dane Brunell Norford pled guilty to conspiracy to possess with
intent to distribute fifty grams or more of cocaine base, in violation
of
    21 U.S.C. §§ 841
    , 846 (2000). He was sentenced to 300 months
imprisonment. Counsel has filed a brief in accordance with Anders v.
California,
    386 U.S. 738
     (1967). Counsel states that there are no mer-
itorious issues for appeal, but contends on Norford’s behalf that inef-
fective assistance of counsel and prosecutorial misconduct rendered
Norford’s plea involuntary and that the court erred in denying a
downward departure on the basis of an over-represented criminal his-
tory. Although informed of his right to do so, Norford has not filed
a pro se supplemental brief. Finding no error, we affirm.
The adequacy of a guilty plea generally is reviewed de novo.
United States v. Good,
    25 F.3d 218
    , 219 (4th Cir. 1994). A defen-
dant’s guilty plea must be voluntary. North Carolina v. Alford,
    400 U.S. 25
    , 31 (1970). A plea that was induced by improper threats or
promises, Brady v. United States,
    397 U.S. 742
    , 755 (1970), or
brought about by ineffective assistance of counsel, Hill v. Lockhart,
    474 U.S. 52
    , 56-57 (1985), is involuntary. However, declarations in
open court that a plea is knowingly and voluntarily entered carry a
strong presumption of veracity. United States v. Morrow,
    914 F.2d 608
    , 613-14 (4th Cir. 1990). With these standards in mind, we find
Norford’s plea was both knowing and voluntary. To the extent that
Norford alleges ineffective assistance of counsel, such claims are gen-
erally not cognizable on appeal except when the record conclusively
establishes such ineffective assistance. United States v. King,
    119 F.3d 290
    , 295 (4th Cir. 1997). A review of the record does not con-
clusively establish ineffective assistance of counsel; Norford’s inef-
fective assistance claim is therefore not cognizable in this direct
appeal.
UNITED STATES v. NORFORD                          3
Norford also claims that the district court erred in denying his
motion for a downward departure pursuant to U.S. Sentencing Guide-
lines Manual § 4A1.3 (2002) on the ground that his criminal history
category significantly over-represented the seriousness of his criminal
history. In his plea agreement, Norford clearly waived his right to
appeal his sentence, reserving only the right to appeal from an upward
departure from the guideline range established at sentencing. Because
Norford was sentenced within the guideline range and the district
court discussed with Norford during the Fed. R. Crim. P. 11 colloquy
the waiver of his right to appeal the sentence, the waiver is both valid
and enforceable. United States v. Wessells,
    936 F.2d 165
    , 167-68 (4th
Cir. 1991); United States v. Wiggins,
    905 F.2d 51
    , 53-54 (4th Cir.
1990).
As required by Anders, we have reviewed the record for reversible
error and found none. Accordingly, we affirm Norford’s conviction
and sentence. 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 a petition be filed, but counsel
believes 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 argu-
ment would not aid the decisional process.
AFFIRMED