United States v. Ali Jemah Cotton, 944 F.2d 902, 4th Cir. (1991)

944 F.
2d 902
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Ali Jemah COTTON, Defendant-Appellant.
No. 90-5223.
United States Court of Appeals, Fourth Circuit.

Submitted July 29, 1991.
Decided Sept. 24, 1991.
Appeal from the United States District Court for the Middle District of
North Carolina, at Durham. Norwood Carlton Tilley, Jr., District Judge.
(CR-90-111-D)
Donald Melvin Temple, Laurinda Lopes Hicks, Temple, Hanten, Pearson
& Hicks, Washington, D.C., for appellant.
Robert H. Edmunds, Jr., United States Attorney, Michael F. Joseph,
Assistant United States Attorney, Greensboro, N.C., for appellee.
M.D.N.C.
AFFIRMED.
Before WIDENER and WILKINSON, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
OPINION
PER CURIAM:
Ali Jemah Cotton appeals his convictions arising from a plea of guilty to a four-
count indictment alleging federal firearms and narcotics violations. We affirm.
The first trial against Cotton ended in a mistrial. On the morning of the date set
for a second trial, after the district court refused to grant his motion for a
continuance, Cotton decided to plead guilty. The court conducted a Rule 11
hearing and concluded that the plea was supported by a factual basis and that it
was both knowing and voluntary. Prior to sentencing, one of the counts was
dismissed on double jeopardy grounds. Cotton was then sentenced under the
Sentencing Guidelines to consolidated terms of 51 months on the drug charges
and a mandatory consecutive 30-year sentence for the conviction under 18
U.S.C. 924(c)(1) of using a machine gun during a drug trafficking crime.
Cotton filed a timely notice of appeal from his convictions.1 Cotton raises four
issues on appeal; we address them in order.
Cotton claims that he received ineffective assistance of counsel below. Claims

of ineffective assistance may not be raised on direct appeal unless it
"conclusively appears" from the trial record that the defendant did not receive
effective assistance of counsel. United States v. Fisher, 477 F.2d 300, 302 (4th
Cir.1973); United States v. Mandello, 426 F.2d 1021, 1023 (4th Cir.1970).
Such claims are more properly raised in a proceeding under 28 U.S.C. 2255.
Id. We cannot conclusively say from the present record that Cotton received
ineffective assistance; we therefore do not consider these claims at this time.
Cotton will be free to raise them in a later petition for collateral review.
Cotton next argues that his plea was coerced and unknowing. He contends that
the plea was coerced because of the court's action in denying his motion for
continuance and because of his counsel's "rushed" legal advice. To the extent
that he argues he was coerced by counsel's advice, this states an ineffective
assistance claim which may only be considered under 2255.2 As to the
coercive effects of the court's action, Cotton stated at the Rule 11 hearing that
the plea was totally voluntary and offered of his own free will. He also stated
that no one had threatened him in an effort to secure his plea. These statements
do not support a claim that Cotton felt coerced into pleading guilty, and such
statements by the defendant constitute a "formidable barrier" to subsequent
challenges to the plea. Blackledge v. Allison, 431 U.S. 63, 75 (1977). We do
not believe that the time period allowed for deciding whether to plead or go to
trial, by itself, forced Cotton to plead guilty.
Cotton argues that the plea was unknowing because he was not adequately
informed of the possible sentences he faced. The correct sentences were
announced at the plea hearing by the prosecutor. The transcript of the hearing
lends no support to the argument that Cotton did not understand the penalties to
which he was subject. Cotton stated that he understood the sentences. Though
there may have been some confusion as to whether the deduction for
acceptance of responsibility was applicable to the firearms charges, its
workings were made clear to Cotton and he was told that, in any event, it was
not a sure thing. The explanation of the sentences was adequate.
6
Cotton's third claim is that his statements made to the probation officer during
the preparation of the presentence report should not have been used against him
at sentencing because counsel was not present with him during the interviews.
He contends that the presentence interview is a "critical stage" at which the
sixth amendment guarantees the presence of counsel. Without deciding that
issue, we conclude that Cotton is not entitled to any relief. He does not allege
that counsel was not allowed to attend the interview or that he was forced to
proceed without counsel. In such a situation, even if a sixth amendment right to
counsel existed, it was waived. See United States v. Cortes, 922 F.2d 123, 128
(2d Cir.1990); see also United States v. Johnson, --- F.2d ----, No. 90-5034 (4th
Cir. June 5, 1991) (reasoning of other courts holding that presentence interview
is not a critical stage is "persuasive").
Cotton's final claim is that the imposition of the mandatory thirty-year sentence
required by 924(c)(1), when applied to a first-time offender, is
constitutionally disproportionate. This Court has held that eighth amendment
proportionality review is limited to sentences of death, or life without parole.
United States v. Thomas, 900 F.2d 37, 39 (4th Cir.1990). Because the sentence
imposed on Cotton is thirty years without parole his claim is without merit.
Accordingly, we affirm Cotton's convictions. 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.
Though the notice of appeal was filed by trial counsel, Cotton has subsequently
obtained new counsel who have filed the briefs in this appeal
To the extent that Cotton argues that the court's denial of his motion for a
continuance resulted in ineffective assistance of counsel, see United States v.
Larouche, 896 F.2d 815, 822-25 (4th Cir.), cert. denied, 58 U.S.L.W. 3785
(U.S.1990), we deny the claim without prejudice to ability to raise it later in a
2255 motion

United States v. Ali Jemah Cotton, 944 F.2d 902, 4th Cir. (1991)

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944 F.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

United States Court of Appeals, Fourth Circuit.

count indictment alleging federal firearms and narcotics violations. We affirm.

Cotton claims that he received ineffective assistance of counsel below. Claims

Accordingly, we affirm Cotton's convictions. We dispense with oral argument

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