US v. Victor Ellerbee

Filing 920081114


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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4593 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VICTOR STEWART ELLERBEE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:07-cr-00326-D-1) Submitted: October 23, 2008 Decided: November 14, 2008 Before WILKINSON and Senior Circuit Judge. TRAXLER, Circuit Judges, and HAMILTON, Dismissed in part; affirmed in part by unpublished per curiam opinion. James B. Craven, III, Durham, 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 Unpublished opinions are not binding precedent in this circuit.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: Victor sentence violation after of 18 Stewart pleading U.S.C. Ellerbee guilty appeals to armed (d) from bank his 228-month in robbery, On 2113(a), (2000). appeal, Ellerbee contends the district court erred in designating him as a career offender and that he received ineffective assistance of counsel. 1 dismiss In response, the Government has filed a motion to Ellerbee's appeal, asserting that pursuant to the appellate waiver contained in his plea agreement, there is no basis to challenge the sentence imposed. contends there is no evidence in the The Government also indicating that record Ellerbee's attorney provided ineffective assistance. Pursuant to a plea agreement, a defendant may waive his appellate rights under 18 U.S.C. 3742 (2000). States v. upheld as Wiggins, 905 F.2d and 51, 53 (4th Cir. made). 1990) United (waiver a voluntarily intelligently Whether defendant has waived his right to appeal is an issue of law subject to de novo review. 493, 496 (4th Cir. 1992). specific issue if the United States v. Marin, 961 F.2d A waiver will preclude appeal of a establishes that the waiver is record Ellerbee has also filed a pro se supplemental brief in which he claims his trial attorney committed fraud and asks this court to review his sentence. 1 2 valid and that the issue is within the scope of that waiver. United States v. Attar, 38 F.3d 727, 731-33 (4th Cir. 1994). Ellerbee contends that his criminal history did not justify designation as a career offender, as two of his prior offenses should not have been considered separately under U.S. Sentencing Guidelines Manual 4A1.2(a)(2) (2007). However, this claim is squarely within the scope of the appellate waiver, as Ellerbee waived his right to appeal his sentence, "including any issues that relate to the establishment of the advisory Guideline range." See United States v. Blick, 408 F.3d 162, While Ellerbee reserved the right to in of excess 228 of months the was established within the 172-73 (4th Cir. 2005). appeal a sentence range, imposed Guidelines his sentence Guidelines range of 188 to 235 months. claim is barred by the appellate waiver. Ellerbee also contends that Accordingly, Ellerbee's he received ineffective assistance of counsel. Ellerbee asserts that he would not have entered into his plea agreement had he known that he could have been classified as a career offender, as his trial attorney allegedly failed to discuss this matter with him and led him to believe months. that he would receive a sentence between 70 and 87 According to the terms of the plea agreement, claims of assistance of counsel are not barred by the ineffective appellate waiver. However, these claims should be raised in a 3 28 U.S.C. 2255 (2000) motion rather than on direct appeal unless the record conclusively demonstrates ineffective assistance. Cir. 1997). See United States v. King, 119 F.3d 290, 295 (4th Such a claim cannot be fairly adjudicated on direct appeal when the appellant has not raised the issue before the district court and there is no statement from counsel on the record. United States v. DeFusco, 949 F.2d 114, 120-21 (4th Because the existing record fails to conclusively Cir. 1991). support Ellerbee's assertions that counsel provided ineffective assistance, any such claim must be raised as part of a 2255 motion rather than on direct appeal. 2 Accordingly, we grant the Government's motion to dismiss as to Ellerbee's sentencing claims. As for Ellerbee's claims that he received ineffective assistance of counsel, we deny the Government's motion to dismiss as to those claims, but nonetheless affirm the district court's judgment. We dispense with oral argument because the facts and legal contentions are Ellerbee also asks this court to issue a "new rule" that appeal waivers do not serve the interests of justice and are not enforceable. However, we have consistently upheld the enforceability of appellate waivers. See United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005) (citation omitted). 2 4 adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART 5

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