84 FAPPX 315 - United States v. Rector

                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 02-4627
RASSIE LEE RECTOR,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
     for the Western District of North Carolina, at Asheville.
               Lacy H. Thornburg, District Judge.
                           (CR-01-52)

                  Submitted: November 24, 2003

                      Decided: January 5, 2004

   Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

Tanya L. Davis, BELSER & PARKE, P.A., Asheville, North Carolina, for Appellant. Jill Westmoreland Rose, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. RECTOR
                              OPINION

PER CURIAM:

   Rassie Lee Rector pled guilty to conspiracy to possess with intent
to distribute at least five kilograms of a mixture containing cocaine
and fifty grams of a mixture containing methamphetamine and was
sentenced to 140 months of incarceration. On appeal, counsel has
filed a brief under Anders v. California,

386 U.S. 738

 (1967), alleging
that there are no meritorious claims on appeal but raising the following issues: (1) whether trial counsel provided ineffective assistance of
counsel, and (2) whether the Government’s failure to move for a
downward departure for substantial assistance under U.S. Sentencing
Guidelines Manual § 5K1.1 (2001) constitutes prosecutorial misconduct. Rector has filed a pro se informal brief and supplement alleging
ineffective assistance of counsel. For the reasons that follow, we grant
Rector’s motion to amend his pro se supplement and affirm his conviction and sentence.

   Generally, claims of ineffective assistance of counsel are not cognizable on direct appeal; to allow for adequate development of a record,
a defendant must bring his claim under a

28 U.S.C. § 2255

 (2000)
motion, unless the record conclusively establishes ineffective assistance. United States v. Richardson,

195 F.3d 192, 198

 (4th Cir. 1999);
United States v. King,

119 F.3d 290, 295

 (4th Cir. 1997). We find that
neither counsel nor Rector has raised claims of ineffective assistance
cognizable on direct appeal.

   We do not find that the Government’s failure to move for downward departure for substantial assistance constitutes prosecutorial
misconduct. The Government was not obligated under its plea agreement with Rector to so move, United States v. Snow,

234 F.3d 187, 190

 (4th Cir. 2000), and there is no indication that it refused to make
the motion for an unconstitutional motive. Wade v. United States,

504 U.S. 181, 185-86

 (1992).

   We have examined the entire record in this case in accordance with
the requirements of Anders, and find no meritorious issues for appeal.
Accordingly, we affirm. This court requires that counsel inform his
client, in writing, of his right to petition the Supreme Court of the
                       UNITED STATES v. RECTOR                        3
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