United States v. Godbolt , 200 F. App'x 240 ( 2006 )


Menu:
  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 05-4069
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    CHRISTOPHER BRYAN GODBOLT,
    Defendant - Appellant.
    No. 05-4100
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    JERMAINE DEWON GILCHRIST,
    Defendant - Appellant.
    Appeals from the United States District Court for the Eastern
    District of North Carolina, at Wilmington. Louise W. Flanagan,
    Chief District Judge. (CR-04-58)
    Submitted:   August 23, 2006             Decided:   September 19, 2006
    Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    James M. Ayers, II, AYERS, HAIDT & TRABUCCO, P.A., New Bern, North
    Carolina; Michael R. Ramos, RAMOS & LEWIS, Shallotte, North
    Carolina, for Appellants.    Anne M. Hayes, OFFICE OF THE 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    Unpublished opinions are not binding precedent in this circuit.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:
    Christopher Bryan Godbolt and Jermaine Dewon Gilchrist
    were convicted, pursuant to written plea agreements, of armed bank
    robbery, in violation of 
    18 U.S.C. § 2113
     (2000) (Count Five), and
    using,    carrying,   and   possessing   a    firearm   during   a   crime   of
    violence, in violation of 
    18 U.S.C. § 924
    (c) (2000) (Count Six).
    Godbolt was also separately convicted of another count of armed
    robbery    and   aiding     and   abetting,    pursuant    to    a   Criminal
    Information.* Godbolt was sentenced to 120 months’ imprisonment on
    Count Five and the Criminal Information and 84 months’ imprisonment
    on Count Six, to be served consecutively.         Gilchrist was sentenced
    to a total of 200 months’ imprisonment--116 months on Count Five,
    to be served consecutively with 84 months on Count Six.
    Godbolt’s and Gilchrist’s counsel on appeal filed a brief
    pursuant to Anders v. California, 
    386 U.S. 738
     (1967), stating that
    there are no meritorious issues for appeal, but urging this court
    to reconsider our decision in United States v. Blick, 
    408 F.3d 162
    (4th Cir. 2005).       Gilchrist filed a pro se supplemental brief
    alleging claims of ineffective assistance of counsel.            Godbolt was
    notified of his right to file a pro se supplemental brief, but has
    not done so.     Finding no reversible error, we affirm.
    The parties contend this court should reconsider its
    decision in Blick because Godbolt and Gilchrist could not have
    *
    Godbolt waived prosecution by indictment.
    - 3 -
    understood at the time they waived their rights to appeal that
    their    sentences     were   unconstitutional    under    United      States   v.
    Booker, 
    543 U.S. 220
     (2005), and hence their appellate waivers were
    involuntary.     We find the argument is moot because the Government
    has   not    sought    enforcement   of   the   waiver    in   these    appeals.
    Moreover, because the district court clearly announced that it
    would impose identical sentences if the guidelines were treated as
    advisory, any Booker error in these cases was harmless. See United
    States v. Revels, 
    455 F.3d 448
    , 451-52 (4th Cir. 2006) (concluding
    that a Sixth Amendment error was harmless because the error did not
    affect the outcome of the proceeding, based on the district court’s
    announcement of an identical alternate sentence after considering
    the guidelines as advisory only).
    In his pro se supplemental brief, Gilchrist argues that
    his counsel was ineffective.         Claims of ineffective assistance of
    counsel are not cognizable on direct appeal unless the record
    conclusively establishes ineffective assistance.               United States v.
    Richardson, 
    195 F.3d 192
    , 198 (4th Cir. 1999).             Instead, to allow
    for adequate development of the record, a defendant generally must
    bring his ineffective assistance claims in a motion under 
    28 U.S.C. § 2255
     (2000).        United States v. King, 
    119 F.3d 290
    , 295 (4th Cir.
    1997).      An exception exists where the record conclusively shows
    ineffective assistance.        
    Id.
       Because the record on its face does
    - 4 -
    not conclusively demonstrate ineffective assistance of counsel,
    Gilchrist’s claims are not cognizable on appeal.
    Accordingly,   we   affirm   Godbolt’s   and   Gilchrist’s
    convictions and sentences.    We also deny Gilchrist’s counsel’s
    motion to withdraw as counsel.   This court requires that counsel
    inform their clients, in writing, of their 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
    - 5 -
    

Document Info

Docket Number: 05-4069, 05-4100

Citation Numbers: 200 F. App'x 240

Judges: Niemeyer, Per Curiam, Shedd, Williams

Filed Date: 9/19/2006

Precedential Status: Non-Precedential

Modified Date: 8/7/2023