United States v. Early , 138 F. App'x 598 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4884
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RONNIE D. EARLY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CR-02-125)
Submitted: October 1, 2004 Decided: July 12, 2005
Before MICHAEL and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Nicole E. Upshur, THE LAW OFFICE OF NICOLE ELISE UPSHUR, Virginia
Beach, Virginia, for Appellant. John L. Brownlee, United States
Attorney, Donald R. Wolthuis, Assistant United States Attorney,
Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ronnie Darnell Early pled guilty pursuant to a written
plea agreement to one count of conspiracy to possess with intent to
distribute heroin, in violation of 21 U.S.C. §§ 841, 846 (2000).
The district court sentenced Early to 240 months of imprisonment
followed by forty-eight months of supervised release. Early
appeals his conviction and sentence. Counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), stating
that, in her view, there are no meritorious grounds for appeal.
Finding no error, we affirm.
Counsel first questions whether the district court
properly conducted the Fed. R. Crim. P. 11 colloquy. Our review of
the record leads us to conclude that there is no plain error in the
plea proceeding. See United States v. Martinez, 277 F.3d 517, 525
(4th Cir.) (discussing standard of review), cert. denied, 537 U.S.
899 (2002).
Next, counsel raises as a potential issue that trial
counsel rendered ineffective assistance by failing to object to the
presentence report’s base offense level calculation. An allegation
of ineffective assistance of counsel should not proceed on direct
appeal unless it appears conclusively from the record that
counsel’s performance was ineffective. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). We find that,
because it is not clear that counsel was ineffective, and in fact
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the evidence in the record reveals that Early’s alleged ineffective
assistance issues did not result in error, we decline to consider
this claim on direct appeal.
Finally, to the extent Early challenges his sentence,
this claim is waived by the provisions of Early’s plea agreement.
See United States v. Blick, 408 F.3d 162 (4th Cir. 2005)(an
otherwise valid waiver of appellate rights entered into prior to
Blakely v. Washington, 124 S. Ct. 2531 (2004), is still enforceable
after Blakely and United States v. Booker, 125 S. Ct. 738 (2005)).
As required by Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm.
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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