US v. Joel Henry

Filing 920090706

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4318

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOEL EUGENE HENRY, a/k/a Sleepy, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:06-cr-00022-RLV-CH-1)

Submitted:

June 9, 2009

Decided:

July 6, 2009

Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North Carolina, for Appellant. Thomas Richard Ascik, Amy Elizabeth Ray, Assistant United States Attorneys, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Joel Eugene Henry pled guilty pursuant to a written plea agreement fifty to conspiracy or more to of possess cocaine with base intent and to five

distribute

grams

kilograms or more of cocaine, in violation of 21 U.S.C. § 846 (2006), and was sentenced to 210 months in prison. appealed. Counsel for Henry filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious grounds for appeal, but questioning whether trial counsel provided ineffective assistance. a supplemental was pro se letter that also no Henry has filed his trial we Henry timely

asserted

counsel affirm.

ineffective.

Finding

reversible

error,

Henry's

counsel

argues

that

trial

counsel

was

ineffective for withdrawing his objections to two enhancements in the presentence in a report when the in objections offense could level. have At

resulted

four-level

decrease

sentencing, counsel explained that he withdrew the objections because the seven-level departure that the Government was

recommending for Henry's substantial assistance resulted in a much a larger sentence decrease. Claims of ineffective assistance of counsel are

generally not cognizable on direct appeal. 2

United States v.

King, 119 F.3d 290, 295 (4th Cir. 1997). assistance U.S.C.A. claims § 2255 are (West appropriately Supp. 2008)

Instead, ineffective pursuant for to 28

brought to

allow

adequate

development of the factual record.

Id.

A defendant may raise

an ineffective assistance claim on direct appeal only if the record conclusively demonstrates that defense counsel did not provide effective representation. 434 F.3d 233, a 239 (4th Cir. United States v. Baldovinos, To prove ineffective counsel's of

2006). both:

assistance

defendant fell

must below

show an

(1)

"that

representation

objective

standard

reasonableness" and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v.

Washington, 466 U.S. 668, 688, 694 (1984). Here, the sentencing record does not conclusively

demonstrate that counsel was ineffective.

Counsel's decision to

withdraw the objections to the enhancements was tactical, and thus is entitled 466 to a at strong 689. presumption Nor does of Henry reasonableness. demonstrate a

Strickland,

U.S.

reasonable probability that the court would have lowered his sentencing withdrawn guidelines the range any further if counsel record had does not not

objections.

Because

the

3

conclusively demonstrate ineffective assistance, this claim is not cognizable on direct appeal. * In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court's judgment. This court

requires that counsel inform Henry, in writing, of the right to petition review. the Supreme Court of the United States for further

If Henry 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 Henry. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

Under like reasoning, Henry's pro se contention that his trial counsel afforded ineffective representation must be raised in an appropriate post-conviction proceeding rather than on direct appeal. We find no merit to the remaining issues Henry raises in his pro se submission.

*

4