US v. Bernard Martin
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BERNARD KEITH MARTIN, Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, Chief District Judge. (2:08-cr-00230-1)
November 9, 2009
November 20, 2009
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam opinion.
John R. McGhee, Jr., KAY, CASTO & CHANEY, PLLC, Charleston, West Virginia, for Appellant. J. Christopher Krivonyak, Assistant United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Bernard Keith Martin appeals his conviction, following his guilty plea to one count of aiding and abetting the
possession with intent to distribute a quantity of oxycodone, in violation of 18 U.S.C. § 2 (2006) and 21 U.S.C. § 841(a)(1) (2006), attorney and the 151-month his sentence brief he received. to Martin's Anders are v. no
meritorious issues for appeal, but asking this court to consider the district court's decision to to the sentence a career on Martin within the The of the
applicable to dismiss
offender. the basis
waiver of appellate rights contained in Martin's plea agreement. Martin filed a pro se supplemental brief in which he argues he received ineffective assistance of counsel because his attorney failed to properly advise Martin regarding the impact of accepting the guilty plea. For the reasons set forth below,
we dismiss the appeal in part and affirm in part. We first conclude that Martin has waived his right to appeal his sentence. A defendant may, in a valid plea
agreement, waive the right to appeal under 18 U.S.C. § 3742 (2006). 1990). United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. This court reviews the validity of an appellate waiver
de novo, and will enforce the waiver if it is valid and the 2
issue appealed is within the scope thereof. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
United States v.
An appeal waiver is valid if the defendant knowingly and intelligently whether agreed a to the is waiver. and Id. at 169. To this
court examines the background, experience, and conduct of the defendant. (4th Cir. United States v. Broughton-Jones, 71 F.3d 1143, 1146 1995). Generally, if the district court fully
questions a defendant regarding the waiver during the Fed. R. Crim. P. 11 plea colloquy, the waiver is valid and enforceable. United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991). We have reviewed the record and conclude that Martin knowingly and intelligently entered into the plea agreement and understood the appeal waiver. We further conclude the issue raised in counsel's The waiver
Anders brief falls within the scope of the waiver.
provides that, save for an issue related to the determination of the Sentencing Guidelines range for which an objection was
"properly preserved," Martin waived "his right to seek appellate review of any sentence . . . on any other ground, so long as that sentence is below or within the Sentencing Guideline range determined variance." by the District Court prior to any departure or
Although conceding at the sentencing hearing that he was properly classified a career offender under the Guidelines, Martin argued that he should be sentenced below the range
resulting from the career offender designation.
was not an objection to the district court's "determination of the Sentencing Guideline range," which is what was excepted from the appellate waiver. Accordingly, we conclude the appellate
waiver bars Martin's claim that he was sentenced too harshly and thus grant in part the Government's motion to dismiss the
appeal. The appellate waiver does not, however, preclude us from considering Martin's claim that his attorney was
ineffective for failing to explain that pleading guilty would foreclose appellate review of the district court's order denying his pre-trial motion to suppress. Anders review of Martin's Rule 11 Nor does it foreclose our hearing and conviction.
Therefore, we deny the motion to dismiss in part. Unless an attorney's ineffectiveness is conclusively apparent on the face of the record, ineffective assistance United
claims are not generally addressed on direct appeal.
States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008); 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 raised by motion under 28 4
U.S.C. § 2255).
The record as it exists now is insufficient to
determine whether there is any basis for Martin's claim, and Martin's bare assertion regarding his attorney's performance, Benton, 523
standing alone, is inadequate to carry his burden. F.3d at 435.
Accordingly, we decline to consider on direct
appeal Martin's ineffective assistance of counsel claim. We have examined the entire record in accordance with the requirements of Anders, including the integrity of the Rule 11 hearing, and have found no unwaived and meritorious issues for appeal. Accordingly, we grant the Government's motion to
dismiss as to Martin's sentence, deny the motion as to Martin's conviction, and affirm Martin's conviction. counsel's motion to withdraw. Further, we deny
This court requires that counsel
inform Martin, in writing, of the right to petition the Supreme Court of the United States for further review. If Martin
requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's We
motion must state that a copy thereof was served on Martin. dispense with oral argument because the facts and
contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART
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