     Case: 14-60453      Document: 00513084083         Page: 1    Date Filed: 06/18/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                    No. 14-60453                                  FILED
                                  Summary Calendar                            June 18, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DONNELL DURANT COGDELL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:12-CR-106


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       After being granted an out-of-time appeal, Donnell Durant Cogdell
appeals his conviction and sentence (138 months) for attempted possession
with intent to distribute cocaine. In a written plea agreement, Cogdell validly
waived his right to appeal his conviction and sentence. See United States v.
Jacobs, 635 F.3d 778, 781 (5th Cir. 2011); United States v. Bond, 414 F.3d 542,
545-46 (5th Cir. 2005).


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 14-60453

      Nonetheless, Cogdell asserts that his plea and the appeal waiver were
invalid due to counsel’s ineffectiveness because Cogdell was not aware that he
could be sentenced as a career offender. We generally decline to address claims
of ineffective counsel on direct appeal because the record is not sufficiently
developed. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir.), cert. denied,
135 S. Ct. 123 (2014). However, it is clear that this claim of ineffective counsel
lacks arguable merit. United States v. Sanders, 592 F. App’x 335, 336 (5th Cir.
2015)(facially meritless ineffectiveness claim requiring no development of the
record is an exception to the general rule of non-review on direct appeal).
      To prevail on his claim of ineffective counsel, Cogdell must show that
counsel’s performance was deficient and that he was prejudiced by that
performance. See Strickland v. Washington, 466 U.S. 668, 687 (1984). There
is a strong presumption that counsel’s conduct is not deficient. Id. at 689. To
establish prejudice regarding his plea, Cogdell “must show that there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,
59 (1985).
      Cogdell offers only his bare assertion that he was unaware of the
sentencing consequences of his plea. But he neither says that counsel misled
him nor attempts to explain how counsel performed deficiently.                His
conclusional assertion is “insufficient to overcome the strong presumption of
competency and the high burden of actual prejudice required to prove
ineffective assistance of counsel.” Carter v. Johnson, 131 F.3d 452, 464 (5th
Cir. 1997).
      Cogdell also fails to show prejudice. See Hill, 474 U.S. at 59. He pleaded
guilty despite being advised that he faced up to 40 years in prison. Indeed, the
district judge conducted a thorough colloquy at the rearraignment hearing,



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                                 No. 14-60453

explaining that the sentence would depend on calculations under the
Sentencing Guidelines and that the court, regardless of the Guidelines, was
free to sentence Cogdell up to 40 years. Even if it were assumed that Cogdell
was ignorant of the career-offender enhancement, he “understood the length of
time he might possibly receive, [and therefore] he was fully aware of his plea’s
consequences.” Barbee v. Ruth, 678 F.2d 634, 635 (5th Cir. 1982) (internal
quotation marks and citation omitted). Cogdell thus cannot show that the
career-offender enhancement affected his decision to plead guilty. See Hill,
474 U.S. at 59. We note as well that the district court considered counsel’s
lengthy arguments for a variance based upon the same considerations Cogdell
argues here. The district court granted a substantial downward variance
having considered the harshness of the career offender status’s effects on
Cogdell’s guidelines range (188-235 months).
      The Government’s motion to dismiss the appeal is GRANTED and the
appeal is DISMISSED. The Government’s motion for summary affirmance is
DENIED as moot.




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