United States v. Cobbs , 26 F. App'x 98 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4516
CARL W. COBBS,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-7806
CARL W. COBBS,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-99-174)
Submitted: September 28, 2001
Decided: October 25, 2001
Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Theodore N.I. Tondrowski, TONDROWSKI & WICKER, Richmond,
Virginia, for Appellant. Kenneth E. Melson, United States Attorney,
2 UNITED STATES v. COBBS
Laura A. Colombell, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Carl W. Cobbs was convicted of possession of a firearm and
ammunition by a convicted felon in violation of 18 U.S.C.A. § 922(g)
(West 2000). Cobbs appeals his conviction, sentence, and various
orders, alleging errors at trial and sentencing. We affirm.
Cobbs first contends the district erred in denying his motion to sup-
press. In reviewing a denial of a suppression motion, this court
reviews the district court’s factual findings for clear error, and its
legal findings de novo. United States v. Johnson, 114 F.3d 435, 439
(4th Cir. 1997). In addition, the court construes the evidence in the
light most favorable to the Government, the prevailing party below.
See United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998). A
review of the record shows no error. Contrary to Cobbs’ assertion,
police did not stop his vehicle based on an anonymous tip lacking any
indicia of reliability, but rather based on face-to-face reports of four
citizens to two different officers, each of which was consistent with
the others, within a short span of time.
Cobbs next contends the district court erred by admitting hearsay
testimony. Even assuming the evidence complained of was hearsay,
because any error in allowing the complained of testimony was
invited by Cobbs’ attorney, he is prohibited by the invited error doc-
trine from obtaining any relief on this claim. See United States v.
Jackson, 124 F.3d 607, 617 (4th Cir. 1997).
Cobbs further contends the district court erred in determining his
sentence. Cobbs received an enhanced sentence as an armed career
UNITED STATES v. COBBS 3
criminal under 18 U.S.C. § 924(e) (1994). He contends his sentence
below should be vacated in light of the Supreme Court’s recent opin-
ion in Apprendi v. New Jersey, 530 U.S. 466 (2000), because the
enhancement was based on prior convictions, and the fact of such
prior convictions was neither charged in his indictment nor submitted
to the jury for determination. We conclude, however, that Apprendi
does not affect Cobbs’ sentence for being an armed career criminal,
as Apprendi specifically excluded enhancements based on prior con-
victions from its holding. Id. at 490. Cobbs also contends the district
court erred in determining his prior conviction for third degree escape
was a crime of violence. We disagree. See United States v. Dickerson,
77 F.3d 774, 777 (4th Cir. 1996); United States v. Hairston, 71 F.3d
115, 118 (4th Cir. 1995).
Cobbs next argues he received ineffective assistance of counsel at
trial. Claims of ineffective assistance of counsel are generally not
cognizable on direct appeal. United States v. King, 119 F.3d 290, 295
(4th Cir. 1997). To allow for adequate development of the record,
claims of ineffective assistance of counsel must ordinarily be pursued
in a 28 U.S.C.A. § 2255 (West Supp. 2001) motion. United States v.
Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception to this general
rule obtains when the record conclusively establishes ineffective
assistance of counsel. King, 119 F.3d at 295. A review of the record
does not conclusively establish ineffective assistance of counsel, and
Cobbs’ ineffective assistance claims are therefore not cognizable in
this direct appeal.
Lastly, Cobbs contends, in his pro se consolidated appeal, that the
district court abused its discretion by denying his motion for a new
trial and his motion objecting to the Government’s late filing of a
response to that motion. However, in his informal brief Cobbs fails
to challenge the district court’s denial of his motion objecting to the
Government’s late filing of a response. By failing to raise this issue
in his informal brief, Cobbs has waived it. See Fourth Cir. Loc. R.
34(b). Thus, the issue is not properly before the court. Moreover, we
find the district court did not abuse its discretion with regard to
Cobbs’ motion for a new trial.
Accordingly, we affirm Cobbs’ conviction and sentence and the
district court’s denial of his motions. Further, we deny Cobbs’ motion
4 UNITED STATES v. COBBS
for leave to file a supplemental pro se brief. 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