US v. Sandra Elliott

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal in part [998838121-2]. Originating case number: 5:09-cr-00383-BO-1 Copies to all parties and the district court/agency. [998886769].. [11-5188]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-5188

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SANDRA ELLIOTT,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:09-cr-00383-BO-1)

Submitted:

June 22, 2012

Decided:

July 2, 2012

Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam
opinion.

Ronnie M. Mitchell, THE MITCHELL LAW GROUP, Fayetteville, 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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Sandra Elliott pled guilty, pursuant to a written plea
agreement, to health care fraud, and aiding and abetting, in
violation of 18 U.S.C.A. § 1347 (West 2006 & Supp. 2012) and 18
U.S.C. § 2 (2006).

The district court sentenced Elliott to 120

months’ imprisonment.

On appeal, Elliott argues that she was

denied effective of assistance of counsel at sentencing and that
her sentence was unreasonable.
The Government seeks to enforce the appellate waiver
provision

of

the

Elliott’s appeal.

plea

agreement

and

has

moved

to

dismiss

In response, Elliott asserts that the issues

she raises on appeal are outside the scope of the waiver.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006).
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).

United States v.

An appellate waiver

must be “the result of a knowing and intelligent decision to
forgo the right to appeal.”

United States v. Broughton-Jones,

71 F.3d 1143, 1146 (4th Cir. 1995) (internal quotation marks and
citation omitted).

We review de novo whether a defendant has

effectively waived her right to appeal.

United States v. Marin,

961 F.2d 493, 496 (4th Cir. 1992).
In her plea agreement, Elliott agreed to waive her
right to appeal a within-Guidelines sentence, but reserved her
right to raise on appeal issues of ineffective assistance of
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counsel or prosecutorial misconduct.

Elliott does not challenge

the validity of her waiver of appellate rights, but contends
that the issues she raises on appeal are outside the scope of
the waiver.
As the district court imposed a sentence within the
Guidelines range established at sentencing, Elliott’s challenge
to her sentence falls within the scope of the waiver and may not
be

reviewed

by

this

court.

However,

Elliott’s

claim

that

counsel was ineffective at sentencing is outside the scope of
the waiver and is subject to appellate review.

Nevertheless,

claims of ineffective assistance of counsel should be raised in
a 28 U.S.C.A. § 2255 (West Supp. 2012) motion rather than on
direct

appeal,

unless

the

appellate

demonstrates ineffective assistance.
523 F.3d 424, 435 (4th Cir. 2008).
not

conclusively

show

that

record

conclusively

United States v. Benton,

Because the record here does

counsel

was

constitutionally

ineffective, we decline to review this claim on direct appeal.
Accordingly,

we

grant

the

dismiss in part and deny it in part.
Elliott’s
district
facts

sentence
court.

and

legal

and
We

otherwise

dispense

contentions

3

motion

to

We dismiss the appeal of

affirm

with
are

Government’s

oral

the

judgment

argument

adequately

of

the

because

the

presented

in

the

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materials

before

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the

court

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and

argument

would

not

aid

the

decisional process.
AFFIRMED IN PART;
DISMISSED IN PART

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