US v. Ismalius White

Filing 920100226

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4218

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ISMALIUS JARON WHITE, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (4:06-cr-00068-FL-1)

Submitted:

January 28, 2010

Decided:

February 26, 2010

Before NIEMEYER, MICHAEL, and AGEE, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam opinion.

Richard Croutharmel, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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: Ismalius Jaron White pled guilty to conspiracy to

distribute and possess with intent to distribute more than fifty grams of cocaine base (crack) and was sentenced to 420 months of imprisonment. On appeal, counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), asserting there are no meritorious grounds for appeal, but raising the following issues: (1) whether the district court impermissibly enhanced White's sentence by "double counting" his prior conduct for both criminal history and relevant conduct purposes; (2) whether

trial counsel rendered ineffective assistance; (3) whether the Government engaged in prosecutorial misconduct; and (4) whether White failed to execute a knowing and voluntary plea agreement. The Government has filed a motion to dismiss the appeal of

White's sentence, noting that he waived this right in his plea agreement. For the reasons that follow, we dismiss in part and

affirm in part. First, we find that White has waived his right to

appeal his sentence. Fed. R. Crim. P. 11

A review of his plea agreement and his hearing and reveals waived that he knowingly to appeal and his

voluntarily sentence.

pled

guilty

his

right

United States v. Broughton-Jones, 71 F.3d 1143, 1146 Accordingly, we grant the Government's motion appeal of White's 2 sentence. Therefore, we

(4th Cir. 1995). to dismiss the

decline to further address counsel's first issue raised in his Anders brief as this issue seeks to challenge the validity of White's sentence. Second, we find no ineffective assistance of trial

counsel at this juncture.

Claims of ineffective assistance of United

counsel generally are not cognizable on direct appeal.

States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Instead, ineffective assistance claims are appropriately brought pursuant to 28 U.S.C.A. § 2255 (West Supp. 2009), to allow for adequate development of the factual record. defendant may raise an ineffective King, 119 F.3d at 295. counsel claim on A

direct

appeal only if the record conclusively demonstrates that defense counsel did not provide effective representation. United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Next, counsel suggests the Government engaged in

prosecutorial misconduct. test for prosecutorial

As conceded by counsel, however, the misconduct is whether the prosecution

made a remark so prejudicial that it denied the defendant a fair trial. 1993). United States v. Mitchell, 1 F.3d 235, 240 (4th Cir. White's guilty plea conviction simply does not lend

itself to a prosecutorial misconduct analysis, United States v. Wilson, 135 F.3d 291, 297 (4th Cir. 1998), and we find none on the record.

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Last, voluntarily

counsel his

questions plea and

whether plea

White

knowingly As

and

executed

agreement.

noted

above, the record reveals that White knowingly and voluntarily pled guilty. To the extent White contests the validity of his

plea and agreement, however, he is required to show plain error, as he failed to move in the district court to withdraw his guilty plea. See United States v. Martinez, 277 F.3d 517, 524, White's claim fails

527 (4th Cir. 2002) (providing standard).

as he has not shown that but for any alleged errors there was a reasonable probability that he would not have entered the plea. United States v. Massenburg, 564 F.3d 337, 344 (4th Cir. 2009). In accordance with Anders, we have reviewed the entire record in this case, including the issues raised in White's pro se supplemental briefs, and have found no meritorious issues for appeal. Accordingly, we affirm White's conviction and dismiss This court requires that counsel

the appeal of his sentence.

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 filed, but counsel believes that such a petition would be frivolous, then counsel may move

Indeed, in light of White's extensive criminal history and his active involvement in the case below, he would be hard pressed to show that he misunderstood the nature and consequences of his guilty plea.

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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.

DISMISSED IN PART; AFFIRMED IN PART

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