UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-5074

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

ROBERT DEON HUNTER, SR., a/k/a Bob Hunter, 

 Defendant - Appellant. 

No. 07-5143

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

ROBERT DEON HUNTER, JR., a/k/a Robert Dean Hunter, Jr., 

 Defendant – Appellant. 

Appeals from the United States District Court for the Western 

District of North Carolina, at Asheville. Lacy H. Thornburg, 

District Judge. (1:06-cr-00251-LHT-4; 1:06-cr-00251-LHT-3) 

Submitted: March 11, 2009 Decided: March 27, 2009 

Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges. 
No. 07-5074 affirmed; No. 07-5143 dismissed by unpublished per 

curiam opinion. 

Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Arden, North 

Carolina; John C. Hunter, JOHN C. HUNTER LAW FIRM, LLC, 

Asheville, North Carolina, for Appellants. Gretchen C. F. 

Shappert, United States Attorney, Charlotte, North Carolina, 

Amy E. Ray, Assistant United States Attorney, Asheville, North 

Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 

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PER CURIAM: 

 In these consolidated appeals, Robert Deon Hunter, Sr. 

(“Hunter, Sr.”) and his son, Robert Deon Hunter, Jr. (“Hunter, 

Jr.”), appeal their convictions and sentences stemming from a 

cocaine base distribution conspiracy. Hunter, Sr. was sentenced 

to 262 months in prison, and Hunter, Jr. was sentenced to 120 

months in prison, after they each pled guilty pursuant to plea 

agreements to one count of conspiracy to possess with intent to 

distribute cocaine base, in violation of 21 U.S.C. §§ 841, 846 

(2006). 

 Counsel for the Hunters filed a consolidated brief in 

which Hunter, Jr. asserts that the district court erred in 

denying him a two-level reduction in his offense level because 

of his allegedly minor role in the conspiracy. The Government 

asserts that his appeal should be dismissed based on the 

appellate waiver contained in his plea agreement. Hunter, Sr. 

asserts that his sentence should be vacated because his attorney 

was ineffective for failing to move for a downward departure 

sentence based on the Guidelines’ crack/powder cocaine 

disparity. The Government claims that Hunter, Sr.’s ineffective 

assistance of counsel claim is not cognizable on direct appeal. 

We dismiss in part and affirm in part. 

 We find that Hunter, Jr.’s appeal challenging the 

district court’s Guidelines range calculation is explicitly 

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barred by his appellate waiver because the record establishes 

that Hunter, Jr. knowingly and intelligently waived his right to 

appeal his sentence; the language of the appellate waiver and 

plea agreement is clear and unmistakable and Hunter, Jr. 

acknowledged his familiarity with and understanding of the 

waiver at his Fed. R. Crim. P. 11 hearing. Accordingly, we must 

enforce the appellate waiver’s terms and dismiss Hunter, Jr.’s 

appeal. See United States v. Blick, 408 F.3d 162, 168-69 (4th 

Cir. 2005). 

 We also find that Hunter, Sr.’s ineffective assistance 

of counsel claim is not cognizable on appeal. Ineffective 

assistance of counsel claims are not generally cognizable on 

direct appeal unless ineffective assistance “conclusively 

appears” on the record. See United States v. Baldovinos, 

434 F.3d 233, 239 (4th Cir. 2006). To establish an ineffective 

assistance of counsel claim, a defendant must show that his 

counsel erred and then prove that but for counsel’s error, the 

outcome of his proceedings would have been different. See

Strickland v. Washington, 466 U.S. 668, 694 (1984). To satisfy 

the second prong of Strickland, Hunter, Sr. must demonstrate 

that “there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have 

been different.” Id. at 694. “A reasonable probability is a 

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probability sufficient to undermine confidence in the outcome.” 

Id. 

 Hunter, Sr. claims that his counsel was ineffective 

for failing to seek a downward departure sentence based on the 

Guidelines’ crack/powder cocaine disparity. Because the law of 

this circuit at the time of Hunter, Sr.’s sentencing clearly 

prohibited a sentencing court from departing downward based on 

the crack/powder cocaine disparity, see United States v. Eura, 

440 F.3d 625, 634 (4th Cir. 2006) (holding that a district court 

must not “rely on a factor that would result in a sentencing 

disparity that totally is at odds with the will of Congress,” 

such as reliance on “recommendations to narrow the 100:1 

[crack/powder cocaine] ratio”), abrogated by, Kimbrough v. 

United States, 128 S. Ct. 558, 574 (2007) (“[I]t would not be an 

abuse of discretion for a district court to conclude when 

sentencing a particular defendant that the crack/powder 

disparity yields a sentence ‘greater than necessary’ to achieve 

§ 3553(a)’s purposes.”),* it is unlikely--and certainly not 

“reasonabl[y] probab[le]”--that the district court would have 

granted a departure request. Because Hunter, Sr. has not shown 

a reasonable probability that his sentence would have been 

 *

 Hunter, Sr. was sentenced on October 31, 2007, and 

Kimbrough issued on December 10, 2007. 

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different had his attorney moved for a downward departure 

sentence, we find that his ineffective assistance does not 

conclusively appear on the record. See Strickland, 466 U.S. at 

694. 

 For the foregoing reasons, we dismiss Hunter, Jr.’s 

appeal (No. 07-5143) and affirm Hunter, Sr.’s conviction and 

sentence (No. 07-5074). 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. 

No. 07-5074 AFFIRMED

No. 07-5143 DISMISSED