US v. Vincent Sinclair

Filing 920090430

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4231 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VINCENT SINCLAIR, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:07-cr-00015-BO-1) Submitted: March 25, 2009 Decided: April 30, 2009 Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Robert J. McAfee, MCAFEE LAW, P.A., New Bern, 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 Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Vincent plea agreement Sinclair to pled guilty to pursuant to a written to conspiracy possess with intent distribute cocaine, conspiracy to kidnap, and using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. 924(c)(1)(A), 1201(a)(1); 21 U.S.C. 846 (2006). Sinclair was sentenced to a total of 413 months' imprisonment. Finding no error, we affirm. Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he asserts there are no meritorious court issues erred for in appeal but the questions motion to whether withdraw the the district guilty denying trial plea and whether counsel provided ineffective assistance. Sinclair filed a pro se supplemental brief, and we grant his motion to amend the pro se brief, joining in counsel's assertions and additionally contending that: (1) his waiver of indictment failed to comply with Fed. R. Crim. P. 7; (2) the Fed. R. Crim. P. 11 hearing was inadequate; (3) his residence was searched in violation erred in of the Fourth to Amendment; into (4) the district court failing inquire counsel's conflict of interest; (5) his sentence is unreasonable because it is disparate and to (6) sentences the received by other was involved improperly defendants; 924(c) offense predicated on the conspiracy to kidnap count. 2 Sinclair whether the and appellate court erred counsel in initially the question motion to district denying withdraw the guilty plea. A defendant may withdraw a guilty plea prior to sentencing if he "can show a fair and just reason for requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B). In determining whether a defendant will be permitted to withdraw his guilty plea, a district court should consider: (1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary, (2) whether the defendant has credibly asserted his legal innocence, (3) whether there has been a delay between the entering of the plea and the filing of the motion, (4) whether defendant has had close assistance of competent counsel, (5) whether withdrawal will cause prejudice to the government, and (6) whether it will inconvenience the court and waste judicial resources. United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). The district court's denial of a motion to withdraw the guilty plea is reviewed for abuse of discretion. United We States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). closely scrutinize the Rule 11 colloquy and attach a strong presumption that the plea is final and binding if the Rule 11 hearing is adequate. United States v. Lambey, 974 F.2d 1389, We have reviewed the Rule 11 Moreover, because 1394 (4th Cir. 1992) (en banc). hearing and conclude that it was adequate. Sinclair has failed to overcome the presumption that his plea is 3 final and binding, we conclude the district court did not abuse its discretion in denying the motion to withdraw. Sinclair and appellate counsel also contend that trial counsel provided of ineffective claim assistance. generally instead be is not An ineffective on assistance direct counsel but cognizable in a appeal, should asserted post- conviction motion under 28 U.S.C.A. 2255 (West Supp. 2008). See United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). rule However, we have recognized an exception to the general when "it `conclusively appears' from the record that Id. defense counsel did not provide effective representation." (quoting United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994)). Because the record does not conclusively establish that counsel was ineffective, the claim is not cognizable on appeal. We have carefully considered the additional claims raised in the pro se supplemental brief, as amended, in light of the applicable merit. the legal standards, in and find the claims to we be without reviewed Further, accordance in this with and Anders, have we have no the entire issues record for case found meritorious appeal. Accordingly, affirm judgment of the district court. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. 4 If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move this court for leave to withdraw from representation. Counsel's motion must state We dispense with contentions the court are and that a copy thereof was served on the client. oral argument because in the the facts and legal before adequately presented materials argument would not aid the decisional process. AFFIRMED 5

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