US v. Anthony Shepard

Filing 920090710

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4856 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTHONY ANTONIO SHEPARD, Defendant -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-00201-D-1) Submitted: June 9, 2009 Decided: July 10, 2009 Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed in part; affirmed in part by unpublished per curiam opinion. Walter H. Paramore, III, WALTER H. PARAMORE, III, P.C., Jacksonville, 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 Unpublished opinions are not binding precedent in this circuit.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: In this appeal filed pursuant to Anders v. California, 386 U.S. 738 and (1967), 264-month Anthony Antonio he Shepard appeals his conviction sentence received after pleading guilty to distribution of more than five grams of cocaine base, in violation of 21 U.S.C. 841(a)(1)(2006), and aiding and abetting, in violation of 18 U.S.C. 2 (2006). notes no meritorious issues for appeal, but Anders counsel raises as a potential issue the district court's denial of a three-level reduction response, in the sentence for acceptance has filed of a responsibility. motion to In Government dismiss, asserting the waiver of appellate rights included in Shepard's plea agreement precludes appeal of his sentence. Shepard filed a pro se supplemental brief, arguing his attorney provided him ineffective assistance by failing to adequately counsel him as to the possible sentencing consequences arising out of his relevant conduct. For the reasons set forth below, we affirm in part and grant the Government's motion to dismiss in part. We first conclude that Shepard has waived his right to appeal his sentence and its calculation. A defendant may, in a valid plea agreement, waive his appellate rights under 18 U.S.C. 3742 (2000). Cir. 1990). United States v. Wiggins, 905 F.2d 51, 53 (4th We review the validity of an appellate waiver de novo and will enforce the waiver if it is valid and the issue 2 appealed is within the scope thereof. 408 F.3d 162, 171 (4th Cir. 2005). United States v. Blick, An appeal waiver is valid if the defendant knowingly and intelligently agreed to the waiver. Id. at 169. "An appeal waiver is not knowingly or voluntarily made if the district court fails to specifically question the defendant concerning the waiver provision . . . during the [Fed. R. Crim. P.] 11 colloquy and the record indicates that the defendant did not otherwise understand the full significance of the waiver." Cir. 2005) United States v. Johnson, 410 F.3d 137, 151 (4th (internal quotation marks omitted). Ultimately, however, the issue is "evaluated by reference to the totality of the circumstances." (4th Cir. 2002). The appellate waiver set forth in Shepard's plea United States v. General, 278 F.3d 389, 400 agreement provided that Shepard agreed: To waive knowingly and expressly the right to appeal of whatever sentence is imposed on any ground, including any appeal pursuant to 18 U.S.C. 3742, reserving only the right to appeal from a sentence in excess of the advisory Guideline range that is established at sentencing based on the applicable drug weight and criminal history category, and further to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to 28 U.S.C. 2255, excepting the Defendant's right to appeal based upon grounds of ineffective assistance of counsel. Our knowingly and review of the record his reveals right that to Shepard his voluntarily waived appeal 3 sentence. The waiver's language is clear and unambiguous, and the district court reviewed the terms of the waiver with Shepard at the Fed. R. Crim. P. 11 hearing to ensure he understood it. Accordingly, we conclude the waiver is valid and enforceable. Because the sentencing issue raised on appeal falls within the scope of the the waiver waiver that will Shepard be knowingly to and voluntarily review of accepted, Shepard's enforced we preclude the sentence. Accordingly, grant Government's motion to dismiss Shepard's appeal to the extent it challenges his sentence. Shepard attorney provided challenges him his conviction assistance by by arguing failing his to ineffective adequately counsel him regarding sentencing consequences arising out of his relevant conduct, which resulted in the denial of the three-level reduction in sentence intimates validity of for that his acceptance such plea. of responsibility. assistance Shepard the ineffective Unless an undercuts attorney's ineffectiveness is conclusively apparent on the face of the record, ineffective assistance claims are not generally addressed on direct appeal. United States v. James, 337 F.3d 387, 391 (4th Cir. 2003); United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (providing standard and noting that ineffective assistance of counsel claims generally should be 4 raised by motion under 28 U.S.C. 2255 (2000)). We find the record in this case falls short of this exacting standard. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. dismiss, sentence. judgment. We require 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 Accordingly, in part, We and we grant the Government's motion to to his dismiss Shepard's of the challenge district affirm the remainder court's filed, but counsel believes that such filing would be frivolous, then counsel may move in 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 before contentions the court are and adequately argument presented not in aid the the materials decisional would process. DISMISSED IN PART; AFFIRMED IN PART 5

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