United States of America v. California, 386 U.S. 738 1967 , stating that there are no meritorious issues for…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4069
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER BRYAN GODBOLT,
Defendant - Appellant.
No. 05-4100
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERMAINE DEWON GILCHRIST,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
Chief District Judge. (CR-04-58)
Submitted: August 23, 2006 Decided: September 19, 2006
Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.

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Affirmed by unpublished per curiam opinion.
James M. Ayers, II, AYERS, HAIDT & TRABUCCO, P.A., New Bern, North
Carolina; Michael R. Ramos, RAMOS & LEWIS, Shallotte, North
Carolina, for Appellants. Anne M. Hayes, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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*Godbolt waived prosecution by indictment.
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PER CURIAM:
Christopher Bryan Godbolt and Jermaine Dewon Gilchrist
were convicted, pursuant to written plea agreements, of armed bank
robbery, in violation of 18 U.S.C. § 2113 (2000) (Count Five), and
using, carrying, and possessing a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c) (2000) (Count Six).
Godbolt was also separately convicted of another count of armed
robbery and aiding and abetting, pursuant to a Criminal
Information. * Godbolt was sentenced to 120 months’ imprisonment on
Count Five and the Criminal Information and 84 months’ imprisonment
on Count Six, to be served consecutively. Gilchrist was sentenced
to a total of 200 months’ imprisonment--116 months on Count Five,
to be served consecutively with 84 months on Count Six.
Godbolt’s and Gilchrist’s counsel on appeal filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating that
there are no meritorious issues for appeal, but urging this court
to reconsider our decision in United States v. Blick, 408 F.3d 162
(4th Cir. 2005). Gilchrist filed a pro se supplemental brief
alleging claims of ineffective assistance of counsel. Godbolt was
notified of his right to file a pro se supplemental brief, but has
not done so. Finding no reversible error, we affirm.
The parties contend this court should reconsider its
decision in Blick because Godbolt and Gilchrist could not have

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understood at the time they waived their rights to appeal that
their sentences were unconstitutional under United States v.
Booker, 543 U.S. 220 (2005), and hence their appellate waivers were
involuntary. We find the argument is moot because the Government
has not sought enforcement of the waiver in these appeals.
Moreover, because the district court clearly announced that it
would impose identical sentences if the guidelines were treated as
advisory, any Booker error in these cases was harmless. See United
States v. Revels, 455 F.3d 448, 451-52 (4th Cir. 2006) (concluding
that a Sixth Amendment error was harmless because the error did not
affect the outcome of the proceeding, based on the district court’s
announcement of an identical alternate sentence after considering
the guidelines as advisory only).
In his pro se supplemental brief, Gilchrist argues that
his counsel was ineffective. Claims of ineffective assistance of
counsel are not cognizable on direct appeal unless the record
conclusively establishes ineffective assistance. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Instead, to allow
for adequate development of the record, a defendant generally must
bring his ineffective assistance claims in a motion under 28 U.S.C.
§ 2255 (2000). United States v. King, 119 F.3d 290, 295 (4th Cir.
1997). An exception exists where the record conclusively shows
ineffective assistance. Id. Because the record on its face does

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not conclusively demonstrate ineffective assistance of counsel,
Gilchrist’s claims are not cognizable on appeal.
Accordingly, we affirm Godbolt’s and Gilchrist’s
convictions and sentences. We also deny Gilchrist’s counsel’s
motion to withdraw as counsel. This court requires that counsel
inform their clients, in writing, of their right to petition the
Supreme Court of the 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

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