US v. Ellison Cooper

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:12-cr-00520-TLW-1 Copies to all parties and the district court/agency. [999314084].. [13-4334]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4334

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ELLISON LAKELL COOPER,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence.
Terry L. Wooten, Chief District
Judge. (4:12-cr-00520-TLW-1)

Submitted:

February 26, 2014

Before AGEE and
Circuit Judge.

FLOYD,

Circuit

Decided:

Judges,

and

March 12, 2014

HAMILTON,

Senior

Affirmed in part; dismissed in part by unpublished per curiam
opinion.

Tracey C. Green, WILLOUGHBY & HOEFER, P.A., Columbia, South
Carolina, for Appellant.
Alfred William Walker Bethea, Jr.,
United States Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Ellison Lakell Cooper appeals his conviction and 300month sentence imposed following his guilty plea, pursuant to a
written Fed.

R.

Crim.

P.

11(c)(1)(C)

plea

agreement,

to

one

count of Hobbs Act robbery, in violation of 18 U.S.C. § 1951
(2012), and one count of brandishing a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c) (2012).

Cooper’s

counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that there are no meritorious issues
for appeal but questioning whether the district court complied
with Rule 11 at Cooper’s change of plea hearing, whether the
district

court

erroneously

denied

Cooper’s

final

motion

to

substitute counsel, whether the sentence may be challenged on
appeal, and whether plea counsel was ineffective.

Cooper filed

a

counsel

pro

se

supplemental

brief

arguing

appellate counsel were ineffective.
to file a response brief.

that

plea

and

The Government has declined

Following a careful review of the

record, we affirm in part and dismiss in part.
Prior to accepting a guilty plea, the district court,
through colloquy with the defendant, must inform the defendant
of, and determine that the defendant understands, the nature of
the charges to which the plea is offered, any mandatory minimum
penalty, the maximum penalties he faces, and the various rights
he

is

relinquishing

by

pleading
2

guilty.

Fed.

R.

Crim.

P.

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11(b)(1); see United States v. DeFusco, 949 F.2d 114, 116 (4th
Cir.

1991).

defendant’s

The
plea

district
is

court

voluntary,

must

is

also

ensure

supported

by

a

that

the

sufficient

factual basis, and is not the result of force or threats.

Fed.

R. Crim. P. 11(b)(2), (3); DeFusco, 949 F.2d at 116, 119-20.
Upon review of the record, we conclude that the district court
complied with Rule 11’s requirements.
Cooper and counsel next challenge the district court’s
denial of the motion to substitute counsel.
ruling for abuse of discretion.
F.3d 463, 466 (4th Cir. 2012).
right

to

counsel

absolute.

of

his

We review this

United States v. Horton, 693

While a criminal defendant has a

own

choosing,

that

right

is

not

Powell v. Alabama, 287 U.S. 45, 52-53 (1932); Sampley

v. Attorney Gen. of N.C., 786 F.2d 610, 612 (4th Cir. 1986).

In

particular, a defendant’s right to choose his own counsel is
limited so as not to deprive a court of its “inherent power to
control

the

administration

of

justice.”

United

States

v.

Gallop, 838 F.2d 105, 108 (4th Cir. 1988); see United States v.
Gonzalez-Lopez, 548 U.S. 140, 152 (2006) (“[A] trial court[]
[has] wide latitude in balancing the right to counsel of choice
against

the

needs

of

fairness

calendar.” (citations omitted)).
us

to

conclude

discretion

when

that

the

it

denied

and

against

of

its

Our review of the record leads

district

court

Cooper’s
3

demands

did

final

not

request

abuse

its

for

new

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counsel.
we

note

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Among other factors considered by the district court
that

communication

had

not

completely

broken

down

between Cooper and counsel and that the motion was filed a mere
two weeks before sentencing.
Turning to Cooper’s sentence, we note that Cooper and
the Government stipulated to a sentence as provided by Fed. R.
Crim. P. 11(c)(1)(C).

Pursuant to 18 U.S.C. § 3742(a), (c)

(2012), “[w]here a defendant agrees to and receives a specific
sentence, he may appeal the sentence only if it was (1) imposed
in violation of the law, (2) imposed as a result of an incorrect
application

of

the

Guidelines,

or

(3)

is

greater

than

the

sentence set forth in the plea agreement.”

United States v.

Calderon,

2005)

omitted).

428

F.3d

Here,

928,

the

932

(10th

district

court

Cir.

imposed

(citations

the

specific

sentence to which Cooper agreed, and the sentence did not exceed
the statutory maximum for either conviction.

Moreover, it could

not have been imposed as a result of an incorrect application of
the

Guidelines

11(c)(1)(C)
calculation

because

agreement
of

the

it
and

was

based

not

Guidelines

on

on

the

range.

See

the

parties’

district
United

Rule

court’s

States

v.

Brown, 653 F.3d 337, 339-40 (4th Cir. 2011); United States v.
Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005).

We therefore

dismiss Cooper’s appeal to the extent that he challenges the
stipulated sentence.
4

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Finally,
counsel

was

Cooper

and

ineffective.

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counsel

To

prove

question
a

claim

whether
of

plea

ineffective

assistance of counsel, a defendant must show (1) “that counsel’s
performance

was

deficient,”

and

(2)

performance prejudiced the defense.”
466 U.S. 668, 687 (1984).

“that

the

deficient

Strickland v. Washington,

Moreover, we may address a claim of

ineffective assistance on direct appeal only if the lawyer’s
ineffectiveness

conclusively

appears

on

the

record.

United

States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).

We

have thoroughly reviewed the record and conclude that Cooper has
failed

to

demonstrate

that

ineffective

conclusively appears on the record.

assistance

of

counsel

We therefore decline to

address this argument 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 Cooper’s conviction and dismiss the appeal
to the extent Cooper challenges his sentence.
This
writing,

of

court

the

requires

right

to

that

petition

United States for further review.

counsel
the

inform

Supreme

Cooper,

Court

of

in
the

If Cooper 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 Cooper.
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We dispense with oral argument because the facts and
legal
before

contentions
this

court

are
and

adequately
argument

presented
will

not

in
aid

the
the

materials
decisional

process.
AFFIRMED IN PART;
DISMISSED IN PART

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