UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4196

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

VIRGIL W. WOMACK,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Anderson. G. Ross Anderson, Jr., Senior 

District Judge. (8:09-cr-00786-GRA-1)

Submitted: January 12, 2011 Decided: January 31, 2011

Before WILKINSON, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mario A. Pacella, STROM LAW FIRM, L.L.C., Columbia, South 

Carolina, for Appellant. David Calhoun Stephens, Assistant 

United States Attorney, Greenville, South Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Virgil Womack pled guilty to wire fraud, in violation 

of 18 U.S.C. § 1343 (2006), and was sentenced to twenty-four 

months in prison. He now appeals. His attorney has filed a 

brief pursuant to Anders v. California, 386 U.S. 738 (1967), 

claiming that the district court erred in enhancing Womack’s 

base offense level based on amount of loss but stating that 

there are no meritorious issues for appeal. Womack has filed a 

pro se supplemental brief raising additional issues. We affirm. 

In the Anders brief, Womack contends that the district 

court erred when it increased his base offense level of 7, see

U.S. Sentencing Guidelines Manual (“USSG”) § 2B1.1(a)(1) (2008), 

by twelve levels based on the amount of intended loss, which was 

determined to be $250,000. See USSG § 2B1.1(b)(1)(G) (12-level 

increase where loss exceeds $200,000). Counsel states that the 

parties informed the court at Womack’s Fed. R. Crim. P. 11 

hearing that there was no loss to be included as relevant 

conduct. Our review of the transcript of that proceeding 

discloses that, while the court was informed that there was no 

actual loss, the parties also informed the court that they could 

not at that time determine the amount of intended loss.*

 * In his pro se brief, Womack contends that, because there 

was no actual loss, his offense level was improperly enhanced. 

His contention has no merit. The sentencing guidelines provide 

 

(Continued)
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Accordingly, increasing Womack’s base offense level based on the 

amount of intended loss did not contravene any representations 

made at the Rule 11 proceeding. 

In his pro se brief, Womack complains that the 

indictment was defective, an FBI agent lied at a probable cause 

hearing, and the case was based on a lie told to authorities by 

his brother. His valid guilty plea, however, waives these 

claimed antecedent jurisdictional defects. See Tollett v. 

Henderson, 411 U.S. 258, 267 (1973).

Finally, Womack’s claim of ineffective assistance of 

counsel is not cognizable on appeal because ineffectiveness 

does not conclusively appear on the face of the record. Any 

such claim must be raised, if at all, in a 28 U.S.C.A. § 2255 

(West Supp. 2010) motion. See United States v. Richardson, 195 

F.3d 192, 198 (4th Cir. 1999). 

In accordance with Anders, we have reviewed the entire 

record for meritorious issues and have found none. We therefore 

affirm. This court requires that counsel inform his client, in 

 

that the amount of loss for purposes of sentencing enhancements 

is the greater of the actual loss or the intended loss. USSG 

§ 2B1.1, cmt. n.3(A). “Intended loss” is defined as “the 

pecuniary harm that was intended to result from the offense 

. . . and . . . includes intended pecuniary harm that would have 

been impossible or unlikely to occur[.]” USSG § 2B1.1, cmt. 

n.3(A)(ii).
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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 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