United States of America v. Ian Fitzgerald Mckellar, a/k/a Dee

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4652
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
IAN FITZGERALD MCKELLAR, a/k/a Dee,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (CR-05-181)
Submitted: March 10, 2006 Decided: April 10, 2006
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Allen B. Burnside, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Jonathan Scott Gasser, Acting
United States Attorney, Stanley D. Ragsdale, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Ian Fitzgerald McKellar appeals his conviction and
sentence following a guilty plea to use of a telephone to
facilitate the commission of a felony under the Controlled
Substances Act, the possession with intent to distribute and
distribution of cocaine, in violation of 21 U.S.C. § 843(b) (2000).
McKellar’s attorney on appeal has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that in his
opinion there are no meritorious issues for appeal, but raising as
potential issues whether the district court erred in denying
McKellar’s motion to withdraw his guilty plea and whether the
district court complied with Fed. R. Crim. P. 11. McKellar filed
a pro se supplemental brief. Finding no reversible error, we
affirm.
A defendant who seeks to withdraw his guilty plea before
sentencing must demonstrate a “fair and just reason” for withdrawal
of the plea. Fed. R. Crim. P. 11(d)(2)(B). A “fair and just”
reason is one that essentially “challenges the fairness of the Fed.
R. Crim. P. 11 proceeding” or “challenges the fulfillment of a
promise or condition emanating from the proceeding.” United
States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992). A court
should closely scrutinize the Rule 11 colloquy and attach a strong
presumption that the plea is final and binding if the Rule 11
proceeding is adequate. Id. We review the district court’s denial

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of a motion to withdraw a guilty plea for abuse of discretion.
United States v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996). After
reviewing the record, we find that the district court did not abuse
its discretion by finding no fair and just reason for the
withdrawal of McKellar’s guilty plea.
We note counsel also raises the issue of whether the
district court fully complied with Rule 11, but identifies no error
in the Rule 11 proceeding and concludes that there was full
compliance with the Rule. Our review of the record similarly
discloses full compliance.
Next, we find McKellar’s ineffective assistance of
counsel claims raised in his pro se supplemental brief are not
properly raised on direct appeal. Claims of ineffective assistance
are not cognizable on direct appeal unless conclusively established
on the record. United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999). To allow for adequate development of the record,
claims of ineffective assistance generally should be brought in a
28 U.S.C. § 2255 (2000) motion. United States v. King, 119 F.3d
290, 295 (4th Cir. 1997). We find no evidence in the record
conclusively establishing trial counsel’s ineffectiveness.
With regard to the remaining issues raised in McKellar’s
pro se supplemental brief, we find his claims to be without merit.
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. We

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therefore affirm McKellar’s conviction and sentence. This court
requires that counsel inform his client, in writing, of his 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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