US v. Joseph Young, III

Filing 920100114

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4133

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSEPH LOUIS YOUNG, III, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Greenville. G. Ross Anderson, Jr., Senior District Judge. (6:07-cr-00113-GRA-1)

Submitted:

November 12, 2009

Decided:

January 14, 2010

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Daniel K. Dorsey, Washington, D.C., for Appellant. W. Walter Wilkins, United States Attorney, E. Jean Howard, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: This case is before us after resentencing on remand. We earlier affirmed Joseph Louis Young, III's conviction

pursuant to his guilty plea to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (2006), marijuana one count of possession cocaine, in with intent to of distribute 21 U.S.C.

and

crack

violation

§ 841(a)(1), (b)(1)(B) (2006), and one count of possession of a firearm during a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1)(A) (2006).

However, we vacated his sentence

and remanded for resentencing after finding procedural error in the sentence. United States v. Young, 296 F. App'x 314 (4th

Cir. 2008) (No. 08-4050). On remand, the district court sentenced Young to 262 months' imprisonment. Young filed a timely notice of appeal.

Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he states that he has found no

meritorious issues for appeal but argues that the district court constructively amended the indictment. In his pro se

supplemental brief, Young challenges the validity of his guilty plea and alleges ineffective assistance of appellate counsel. We find the issue raised by counsel and Young's pro se challenge to his guilty plea to be foreclosed by the mandate rule. The mandate rule bars "relitigation of issues expressly 2

or impliedly decided by the appellate court," as well as "issues decided by the district court but foregone on appeal." States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). affirmed Young's conviction in his first appeal, United

Because we he may not

challenge the conviction in this appeal. In his pro se supplemental brief, Young claims that appellate counsel rendered ineffective assistance during the

first appeal.

Claims of ineffective assistance of counsel are See United States v.

generally not cognizable on direct appeal.

King, 119 F.3d 290, 295 (4th Cir. 1997). Rather, to allow for adequate development of the record, a defendant must bring such claims in a 28 U.S.C.A. § 2255 (West Supp. 2009) motion. See

id.; United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception exists where the record conclusively establishes ineffective assistance. United States v. Richardson, 195 F.3d Because the counsel on was

192, 198 (4th Cir. 1999); King, 119 F.3d at 295. record does not we conclusively decline to show that Young's

ineffective, appeal.

consider

Young's

claim

direct

In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Young's conviction and sentence. This court

requires that counsel inform Young, in writing, of the right to petition the Supreme Court of 3 the United States for further

review.

If Young 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 We dispense with oral argument because the are and adequately argument presented not in aid the the

was served on Young. facts and legal before

contentions the court

materials

would

decisional process. AFFIRMED

4