US v. Daniel Monahan

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting in part Motion to dismiss appeal [998246605-2] Originating case number: 3:09-cr-00010-JFA-1 Copies to all parties and the district court/agency. [998490714] [09-4904]

US v. Daniel Monahan

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Case: 09-4904 Document: 87

Date Filed: 12/23/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4904 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL T. MONAHAN, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (3:09-cr-00010-JFA-1) Submitted: November 22, 2010 Decided: December 23, 2010

Before MOTZ, KING, and DUNCAN, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. John H. Hare, Assistant Federal Public Defender, Columbia, South Carolina, for Appellant. William N. Nettles, United States Attorney, Winston D. Holliday, Jr., Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Daniel T. Monahan appeals his conviction and sentence entered after he pled guilty to mail fraud, in violation of 18 U.S.C. appeal § 1341 waiver (2006). contained The in Government the plea seeks to enforce moves the to

agreement

and

dismiss the appeal.

Having found that Monahan voluntarily and

knowingly entered into the plea agreement and that the appeal waiver was enforceable, we deferred action on the Government's motion until receipt of the briefs in order to determine whether Monahan raised any issues that fell outside the scope of the appeal waiver. issues, Having received the briefs and considered the

we grant the motion to dismiss the appeal as to those With regard to

issues within the scope of the appeal waiver.

the remaining issue raised by Monahan, we affirm the conviction and sentence. Monahan's plea agreement contained the following

waiver of his appellate rights: The Defendant is aware that 18 U.S.C. § 3742 and 28 U.S.C. § 2255 afford every defendant certain rights to contest a conviction and/or sentence. Acknowledging those rights, the Defendant, in exchange for the concessions made by the Government in this Plea Agreement, waives the right to contest either the conviction or the sentence in any direct appeal or other post-conviction action, including any proceedings under 28 U.S.C. § 2255. This waiver does not apply to claims of ineffective assistance or prosecutorial misconduct.

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Monahan's claims that the district court erred in determining for sentencing purposes the amount of loss, imposing a

sentencing enhancement for use of sophisticated means and not understanding the discretion it had at sentencing, are within the scope of the appeal waiver. Because we are enforcing the

appeal waiver, we dismiss the appeal as to those issues. Monahan's claim that counsel was ineffective for

having him enter a plea agreement that he claims was invalid is not ready for review. of the appeal While this claim falls outside the scope claims of ineffective assistance of

waiver,

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

United

Rather, to defendant

generally must bring his claims in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion. 418 (4th Cir. 1994). cognizable establishes on Id.; United States v. Hoyle, 33 F.3d 415, However, ineffective assistance claims are appeal if the record United conclusively States v.

direct

ineffective

assistance.

Richardson, 195 F.3d 192, 198 (4th Cir. 1999); King, 119 F.3d at 295. Because the record does not we conclusively will not establish this

Monahan's claim.

counsel

was

ineffective,

review

Accordingly,

we

grant

the

Government's

motion

to

dismiss as to those issues within the scope of the appeal waiver 3

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and affirm the conviction and sentence.

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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