US v. Gonzales March

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:08-cr-00590-CMC-6 Copies to all parties and the district court/agency. [998408058] [09-4421]

US v. Gonzales March

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4421 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GONZALES MARCH, a/k/a Gun, a/k/a Gon, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, District Judge. (3:08-cr-00590-CMC-6) Submitted: July 29, 2010 Decided: August 20, 2010

Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Jessica Salvini, SALVINI & BENNETT, LLC, Greenville, South Carolina, for Appellant. James Chris Leventis, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Mark C. Moore, Stanley Duane Ragsdale, Assistant United States Attorneys, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Gonzales March appeals his conviction and 144 month sentence for conspiracy to distribute and possess with intent to distribute cocaine and marijuana, in violation of 21 U.S.C.

§ 841 (2006) (Count 1) and the use of a telephone to facilitate a drug conspiracy, in violation of 21 U.S.C. § 843(b) (2006) (Count 35). Appellate counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), contending that there are no meritorious issues on appeal, but questioning whether March's appeal is barred by his plea waiver, and whether March's sentence is reasonable. March has filed an informal brief,

questioning the validity of his guilty plea and the district court's application of the career offender enhancement, and

asserting that his original attorney was ineffective in failing to request an exception to March's plea waiver due to the

pendency of the Supreme Court's decision in Chambers v. United States, 129 S. Ct. 687 (2009), and his later attorney was

ineffective in advising March to withdraw his objection to the application of the career offender enhancement, in light of our subsequent decision in United States v. Rivers, 595 F.3d 558 (4th Cir. 2010). affirm. Because March did not move in the district court to withdraw his guilty plea, we review March's Rule 11 hearing for 2 The Government declined to file a brief. We

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plain error. Cir. 2002).

United States v. Martinez, 277 F.3d 517, 525 (4th "To establish plain error, [March] must show that

an error occurred, that the error was plain, and that the error affected his substantial rights." 478 F.3d 247, 249 (4th Cir. 2007). United States v. Muhammad, Even if March satisfies

these requirements, "correction of the error remains within the court's discretion, which [the court] should not exercise unless the error seriously affects the fairness, integrity[,] or public reputation of judicial proceedings." marks and citation omitted). Id. (internal quotation

After reviewing the record, we

find that the district court complied with the mandates of Fed R. Crim. P. 11; therefore, March's guilty plea was knowingly and voluntarily made. Additionally, both March and his counsel challenge

whether March's appeal is barred by the plea waiver contained in March's plea agreement. Where the government seeks to enforce

an appeal waiver and the appellant does not contend that the government is in breach of its plea agreement, a waiver will be enforced if the record shows the waiver is valid and the

challenged issue falls within the scope of the waiver. States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).

United

However, if

the government declines to file a motion or brief raising the waiver issue, we will perform the required Anders review.

United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007). 3

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Because the Government declined to raise the issue of the appeal waiver, we will perform the required Anders review, and need not consider the validity of March's appeal waiver. Next, March's counsel questions whether March's 144

month sentence is substantively reasonable.

Additionally, in

his pro se brief, March contends that, because failure to stop for a blue light is not a crime of violence, the district court committed procedural error in applying the career offender

enhancement. "Regardless of whether the sentence imposed is inside or outside the the [g]uidelines under range, an the appellate court must

review

sentence

abuse-of-discretion

standard."

Gall v. United States, 552 U.S. 38, 51 (2007).

Appellate courts

are charged with reviewing sentences for both procedural and substantive reasonableness. In assess determining the Id. procedural court reasonableness, properly we first the

whether

district

calculated

defendant's advisory guidelines range.

Gall, 552 U.S. at 49-50.

We then determine whether the district court failed to consider the 18 U.S.C. § 3553(a) (2006) factors and any arguments

presented by the parties, treated the guidelines as mandatory, selected a sentence based on "clearly erroneous facts," or

failed to sufficiently explain the selected sentence.

Id. at

51; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). 4

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Finally, sentence,

we

review

the into

substantive account

reasonableness `totality

of of

the the

"taking

the

circumstances, including the extent of any variance from the [g]uidelines range.'" 552 U.S. at 51). Generally, unpreserved errors in sentencing are Pauley, 511 F.3d at 473 (quoting Gall,

reviewed for plain error. States v. Olano, 507 U.S.

See Fed. R. Crim. P. 52(b); United 725, 731-32 (1993). However, a

defendant may waive appellate review of sentencing error if he raises and then knowingly withdraws an objection to the error before the district court. F.3d 1275, 1283 of (11th Cir. to See United States v. Horsfall, 552 2008) (finding that defendant's precluded

withdrawal

objection

sentence

enhancement

appellate review of enhancement); United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) ("[A] party who identifies an issue, and then explicitly withdraws it, has waived the

issue.").

See also United States v. Chapman, 209 F. App'x 253,

268 n.4 (4th Cir. 2006) (No. 04-5010) (noting that "withdrawal of [an] objection amounts to a waiver of any complaint . . . , precluding us from considering the issue even under plain error review") (argued but unpublished). An appellant is precluded See Rodriguez, 311

from challenging a waived issue on appeal. F.3d at 437.

Such a waiver is distinguishable "from a situation

in which a party fails to make a timely assertion of a right ­ 5

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what courts typically call a `forfeiture,'" id. (quoting Olano, 507 U.S. at 733), which, as noted above, may be reviewed on appeal for plain error. Here, the See Olano, 507 U.S. at 733-34. record reflects that March initially

objected to the probation officer's finding that he qualified as a career offender, contending that his conviction for failure to stop for a blue light, in violation of South Carolina Code § 565-750 (2006), was not a crime of violence. During sentencing,

in exchange for the Government's agreement to withdraw its 21 U.S.C. § 851 (2006) information, March withdrew his motion for downward departure and objection to the application of the

career offender enhancement.

Therefore, it is clear that March

has waived this issue, and we are precluded from considering it on appeal. Reviewing the remainder of March's sentence, we find

that it is both procedurally and substantively reasonable. In his pro se informal supplemental brief, March also asserts that the two attorneys who represented him in the

district court each were ineffective.

Claims of ineffective

assistance of counsel generally are not cognizable on direct appeal. 1997). See United States v. King, 119 F.3d 290, 295 (4th Cir. Rather, to allow for adequate development of the record,

a defendant must ordinarily bring his claim in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion. See id.; United States v. An exception to this

Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). 6

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general

rule

exists

when

the

record

conclusively

establishes

ineffective assistance.

United States v. Richardson, 195 F.3d Because the

192, 198 (4th Cir. 1999); King, 119 F.3d at 295.

record does not conclusively establish ineffectiveness of either attorney who represented March, we decline to consider this

claim on direct appeal. In accordance with Anders, we have reviewed the

entirety of the record and find no meritorious issues on appeal. Accordingly, we affirm the judgment of the district court. This

court requires that counsel inform her client, in writing, of his right to petition the Supreme Court of the United States for further filed, review. but If the client requests such a that a petition would be be

counsel

believes

that

petition

frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must state that We dispense with oral

a copy thereof was served on the client.

argument because the facts and legal contentions are adequately expressed in the materials before the court and argument would not aid the decisional process. AFFIRMED

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