US v. David Jenkins

Filing 920100316

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4139

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID BRUCE JENKINS, a/k/a lquid_dragon, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:08-cr-00017-LHT-1)

Submitted:

February 26, 2010

Decided:

March 16, 2010

Before NIEMEYER, SHEDD, and DAVIS, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam opinion.

Lee Ann Anderson McCall, Washington, D.C., for Appellant. Edward R. Ryan, Acting United States Attorney, Adam Morris, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: David Bruce Jenkins pled guilty to coercion and

enticement regarding his attempts to have sexual contact with a minor in violation of 18 U.S.C. § 2422(b) (2006). In his guilty

plea, Jenkins waived his right to appeal except for claims of ineffective assistance of counsel, prosecutorial misconduct, or the reasonableness of any upward variance from the Sentencing Guidelines range. of imprisonment. (JA 10). On Jenkins was sentenced to 262 months Jenkins raises the following

appeal,

issues: (1) whether the Government breached his plea agreement by advocating for an eight-level sentence enhancement, under

U.S. Sentencing Guidelines Manual ("USSG") § 2G1.3(b)(5) (2008); (2) whether trial counsel was ineffective for failing to object to the eight-level enhancement; and (3) whether the eight-level enhancement was erroneous because the victim was not actually under the age of twelve, as the person involved was actually a police officer pretending to be an eleven-year-old girl. For

the reasons that follow, we dismiss in part and affirm in part. First, we find no breach of the plea agreement.

United States v. McQueen, 108 F.3d 64, 65-66 (4th Cir. 1997) (providing plain error review standard). Thus, as argued by the

Government, Jenkins has waived his right to challenge his eightlevel sentencing enhancement. of Jenkins' third issue. We therefore dismiss the appeal

We find Jenkins' remaining issue -- 2

ineffective appeal. 2003)

assistance

of

counsel

--

not

cognizable

in

this

United States v. James, 337 F.3d 387, 391 (4th Cir. (providing standard). Rather, this claim should be

brought, if at all, in a subsequent 28 U.S.C.A. § 2255 (West Supp. 2009) motion. 590 (4th Cir. 1994). United States v. Gastiaburo, 16 F.3d 582, Accordingly, we deny relief on Jenkins' We dispense with oral

second issue and affirm his sentence.

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

3