UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4218

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ISMALIUS JARON WHITE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at New Bern. Louise W. Flanagan,

Chief District Judge. (4:06-cr-00068-FL-1)

Submitted: January 28, 2010 Decided: February 26, 2010

Before NIEMEYER, MICHAEL, and AGEE, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam 

opinion.

Richard Croutharmel, Raleigh, North Carolina, for Appellant. 

Anne Margaret Hayes, Assistant United States Attorney, Raleigh, 

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Ismalius Jaron White pled guilty to conspiracy to 

distribute and possess with intent to distribute more than fifty 

grams of cocaine base (crack) and was sentenced to 420 months of 

imprisonment. On appeal, counsel has filed a brief pursuant to 

Anders v. California, 386 U.S. 738 (1967), asserting there are 

no meritorious grounds for appeal, but raising the following 

issues: (1) whether the district court impermissibly enhanced 

White’s sentence by “double counting” his prior conduct for both 

criminal history and relevant conduct purposes; (2) whether 

trial counsel rendered ineffective assistance; (3) whether the 

Government engaged in prosecutorial misconduct; and (4) whether 

White failed to execute a knowing and voluntary plea agreement. 

The Government has filed a motion to dismiss the appeal of 

White’s sentence, noting that he waived this right in his plea 

agreement. For the reasons that follow, we dismiss in part and 

affirm in part.

First, we find that White has waived his right to 

appeal his sentence. A review of his plea agreement and his 

Fed. R. Crim. P. 11 hearing reveals that he knowingly and 

voluntarily pled guilty and waived his right to appeal his 

sentence. United States v. Broughton-Jones, 71 F.3d 1143, 1146 

(4th Cir. 1995). Accordingly, we grant the Government’s motion 

to dismiss the appeal of White’s sentence. Therefore, we 
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decline to further address counsel’s first issue raised in his 

Anders brief as this issue seeks to challenge the validity of 

White’s sentence.

Second, we find no ineffective assistance of trial 

counsel at this juncture. Claims of ineffective assistance of 

counsel generally are not cognizable on direct appeal. United 

States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Instead, 

ineffective assistance claims are appropriately brought pursuant 

to 28 U.S.C.A. § 2255 (West Supp. 2009), to allow for adequate 

development of the factual record. King, 119 F.3d at 295. A 

defendant may raise an ineffective counsel claim on direct 

appeal only if the record conclusively demonstrates that defense 

counsel did not provide effective representation. United States 

v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). 

Next, counsel suggests the Government engaged in 

prosecutorial misconduct. As conceded by counsel, however, the 

test for prosecutorial misconduct is whether the prosecution 

made a remark so prejudicial that it denied the defendant a fair 

trial. United States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 

1993). White’s guilty plea conviction simply does not lend 

itself to a prosecutorial misconduct analysis, United States v. 

Wilson, 135 F.3d 291, 297 (4th Cir. 1998), and we find none on 

the record. 
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Last, counsel questions whether White knowingly and 

voluntarily executed his plea and plea agreement. As noted 

above, the record reveals that White knowingly and voluntarily 

pled guilty. To the extent White contests the validity of his 

plea and agreement, however, he is required to show plain error, 

as he failed to move in the district court to withdraw his 

guilty plea. See United States v. Martinez, 277 F.3d 517, 524, 

527 (4th Cir. 2002) (providing standard). White’s claim fails 

as he has not shown that but for any alleged errors there was a 

reasonable probability that he would not have entered the plea. 

United States v. Massenburg, 564 F.3d 337, 344 (4th Cir. 2009).∗

In accordance with Anders, we have reviewed the entire 

record in this case, including the issues raised in White’s pro 

se supplemental briefs, and have found no meritorious issues for 

appeal. Accordingly, we affirm White’s conviction and dismiss 

the appeal of his 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 

 ∗ Indeed, in light of White’s extensive criminal history and 

his active involvement in the case below, he would be hard 

pressed to show that he misunderstood the nature and 

consequences of his guilty plea. 
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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.

DISMISSED IN PART;

AFFIRMED IN PART