                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4231


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

VINCENT SINCLAIR,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:07-cr-00015-BO-1)


Submitted:    March 25, 2009                 Decided:   April 30, 2009


Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Robert J. McAfee, MCAFEE LAW, P.A., New Bern, 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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Vincent      Sinclair         pled         guilty      pursuant      to    a   written

plea        agreement      to        conspiracy           to    possess        with      intent      to

distribute cocaine, conspiracy to kidnap, and using a firearm

during and in relation to a crime of violence, in violation of

18 U.S.C. §§ 924(c)(1)(A), 1201(a)(1); 21 U.S.C. § 846 (2006).

Sinclair was sentenced to a total of 413 months’ imprisonment.

Finding no error, we affirm.

               Counsel       filed           a        brief     pursuant        to       Anders      v.

California, 386 U.S. 738 (1967), in which he asserts there are

no    meritorious         issues       for       appeal        but    questions       whether       the

district       court      erred       in   denying           the     motion    to    withdraw       the

guilty       plea   and     whether          trial        counsel       provided         ineffective

assistance.         Sinclair filed a pro se supplemental brief, and we

grant his motion to amend the pro se brief, joining in counsel’s

assertions and additionally contending that: (1) his waiver of

indictment failed to comply with Fed. R. Crim. P. 7; (2) the

Fed. R. Crim. P. 11 hearing was inadequate; (3) his residence

was    searched      in    violation             of    the     Fourth    Amendment;           (4)   the

district       court      erred       in     failing           to    inquire     into      counsel’s

conflict of interest; (5) his sentence is unreasonable because

it     is     disparate         to    sentences            received      by     other         involved

defendants;         and     (6)        the       § 924(c)           offense     was       improperly

predicated on the conspiracy to kidnap count.

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           Sinclair    and    appellate      counsel    initially       question

whether   the   district     court   erred    in   denying     the     motion   to

withdraw the guilty plea.            A defendant may withdraw a guilty

plea prior to sentencing if he “can show a fair and just reason

for requesting the withdrawal.”            Fed. R. Crim. P. 11(d)(2)(B).

In determining whether a defendant will be permitted to withdraw

his guilty plea, a district court should consider:

     (1)   whether  the  defendant  has   offered  credible
     evidence that his plea was not knowing or not
     voluntary, (2) whether the defendant has credibly
     asserted his legal innocence, (3) whether there has
     been a delay between the entering of the plea and the
     filing of the motion, (4) whether defendant has had
     close assistance of competent counsel, (5) whether
     withdrawal will cause prejudice to the government, and
     (6) whether it will inconvenience the court and waste
     judicial resources.

United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).

           The district court’s denial of a motion to withdraw

the guilty plea is reviewed for abuse of discretion.                        United

States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).                          We

closely   scrutinize   the    Rule    11   colloquy    and    attach    a   strong

presumption that the plea is final and binding if the Rule 11

hearing is adequate.         United States v. Lambey, 974 F.2d 1389,

1394 (4th Cir. 1992) (en banc).             We have reviewed the Rule 11

hearing and conclude that it was adequate.                   Moreover, because

Sinclair has failed to overcome the presumption that his plea is




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final and binding, we conclude the district court did not abuse

its discretion in denying the motion to withdraw.

            Sinclair and appellate counsel also contend that trial

counsel     provided          ineffective            assistance.               An     ineffective

assistance       of    counsel       claim      generally         is     not    cognizable             on

direct    appeal,       but     should         instead       be    asserted          in     a    post-

conviction motion under 28 U.S.C.A. § 2255 (West Supp. 2008).

See United States v. Richardson, 195 F.3d 192, 198 (4th Cir.

1999).     However, we have recognized an exception to the general

rule    when     “it    ‘conclusively            appears’         from    the        record          that

defense counsel did not provide effective representation.”                                            Id.

(quoting United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir.

1994)).    Because the record does not conclusively establish that

counsel was ineffective, the claim is not cognizable on appeal.

            We    have     carefully           considered         the     additional            claims

raised in the pro se supplemental brief, as amended, in light of

the    applicable       legal    standards,            and    find       the    claims          to     be

without    merit.        Further,         in    accordance         with       Anders,       we       have

reviewed    the       entire    record         in    this    case       and    have       found        no

meritorious       issues       for    appeal.          Accordingly,            we     affirm          the

judgment of the district court.

               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

                                                 4
petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move 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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