US v. Torrence Howard

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [998422262-2] Originating case number: 5:07-cr-00260-FL-1 Copies to all parties and the district court/agency. [998470192] [10-4359]

US v. Torrence Howard

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Date Filed: 11/22/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4359 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. TORRENCE LASHAWN HOWARD, Defendant ­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. (5:07-cr-00260-FL-1) Submitted: October 8, 2010 Decided: November 22, 2010

Before MOTZ, GREGORY, and WYNN, Circuit Judges. Dismissed by unpublished per curiam opinion. Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Torrence Lashawn Howard appeals the district court's judgment entered pursuant to his guilty plea, under a written plea agreement, to carjacking, in violation of 18 U.S.C. § 2119 (2006), and using, carrying, and brandishing a firearm during and in relation to a crime of violence. 18 U.S.C.A.

§ 924(c)(1)(A)(ii) (West Supp. 2010). that the district court erred in to (1)

On appeal, Howard claims applying the two-level Guidelines used a

sentencing Manual

enhancement (2007);

pursuant and (2)

U.S.

Sentencing that

§ 3B1.4

finding

Howard

juvenile in the commission of the crime under USSG § 3B1.4.

The

Government filed a motion to dismiss based on an appeal waiver provision in the plea agreement. Howard filed a response to the

motion to dismiss arguing that his waiver was not knowing and intelligent and presenting for the first time a claim of

ineffective assistance of counsel, which he argues contributed to his unknowing and unintelligent waiver and places his appeal outside the scope of the waiver. In the alternative, Howard

argues that, even if the waiver is valid, its enforcement would result in a miscarriage of justice. A defendant may, in a valid plea agreement, waive the right to appeal under 18 U.S.C. § 3742 (2006). Manigan, 592 F.3d 621, 627 (4th Cir. 2010). United States v. We review the

validity of an appellate waiver de novo and will uphold a waiver 2

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of appellate rights if the waiver is valid and the issue being appealed is covered by the waiver. F.3d 162, 168 (4th Cir. 2005). The issues raised in Howard's opening brief are United States v. Blick, 408

encompassed by the scope of the waiver provision in which Howard agreed to: waive knowingly and expressly the right to appeal whatever sentence is imposed on any ground, . . . excepting a sentence in excess of the advisory guideline range calculated at sentencing and an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of the Defendant's guilty plea. Howard's claims of error in sentencing are foreclosed by the express terms of the waiver, and we dismiss the appeal as to those claims. We assistance ineffective record. Cir. of conclude counsel that is not Howard's claim on of direct ineffective appeal on as the

cognizable not

assistance

does

conclusively

appear

See United States v. Baldovinos, 434 F.3d 233, 239 (4th Furthermore, enforcement of the valid waiver See

2006).

provision does not result in a miscarriage of justice.

United States v. Johnson, 410 F.3d 137, 152 n.2 (4th Cir. 2005); United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004). Therefore, we also dismiss Howard's ineffective assistance of counsel claim. We dispense with oral argument because the facts 3

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and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional

process. DISMISSED

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