US v. Harold Jackson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:02-cr-00305-WDQ-1. Copies to all parties and the district court/agency. [999125003].. [12-4607]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4607

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HAROLD ELLIS JACKSON,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
William D. Quarles, Jr., District
Judge. (1:02-cr-00305-WDQ-1)

Submitted:

May 30, 2013

Decided:

June 7, 2013

Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.

Dismissed in part, affirmed in part by unpublished per curiam
opinion.

Michael Lawlor, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, James G.
Warwick, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Harold Ellis Jackson appeals after pleading guilty to
bank robbery, in violation of 18 U.S.C. § 2113(b) (2006), and
challenges his 151-month sentence.
that

his

guilty

plea

was

not

On appeal, Jackson contends

knowing

and

voluntary

because,

since he was sentenced in 2003, the law has changed and two
convictions used to qualify him as a career offender are no
longer

valid

received

ineffective

permitted

felonies. 1

predicate

him

to

assistance

plead

offender designation.

guilty

He

of

also

counsel

and

argues
when

stipulate

that

his

to

he

counsel

the

career

We dismiss in part and affirm in part.

The Government moved to dismiss the appeal based on
the

waiver

agreement.
waive

of

appellate

rights

in

Jackson’s

written

plea

As part of the plea agreement, Jackson agreed to

his

right

to

“appeal

whatever

sentence

is

imposed,

including any issues that relate to the establishment of the
guideline
upward

range,

or

established

reserving

downward
at

only

departure

sentencing.”

In

the

right

from
the

the
plea

to

appeal
guideline

agreement,

from

an

range
Jackson

admitted that he is a career offender under Guideline Section

1

The appeal was delayed, and there have been 28 U.S.C.A.
§ 2255 (West Supp. 2012) proceedings.
The district court
granted Jackson’s § 2255 motion in part and permitted a belated
appeal on July 31, 2012.

2

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4B1.1, because he has previously been convicted of robbery with
a deadly weapon in 1995, battery in 1990, and robbery in 1985.
The

district

court

sentenced

Jackson

to

151

months’

imprisonment, at the low end of the Sentencing Guidelines range.
A criminal defendant may waive the right to appeal if
that

waiver

is

knowing

and

intelligent.

United

Poindexter, 492 F.3d 263, 270 (4th Cir. 2007).

States

v.

Generally, if

the district court fully questions a defendant regarding the
waiver of his right to appeal during a plea colloquy performed
in accordance with Fed. R. Crim. P. 11, the waiver is both valid
and enforceable.

United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005).

As we recently explained, “the law ordinarily

considers a waiver knowing, intelligent, and sufficiently aware
if the defendant fully understands the nature of the right and
how it would likely apply in general in the circumstances—even
though

the

defendant

may

not

consequences of invoking it.”

know

the

specific

detailed

United States v. Thornsbury, 670

F.3d 532, 537 (4th Cir.) (internal alteration, quotation marks,
and

emphases

omitted),

cert.

denied,

133

S.

Ct.

196

(2012).

Whether a defendant validly waived his right to appeal is a
question of law we reviews de novo.

United States v. Blick, 408

F.3d 162, 168 (4th Cir. 2005).
Jackson’s

counsel

did

not

contest

the

Government’s

assertions in the motion to dismiss that Jackson knowingly and
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voluntarily waived the right to appeal.

Jackson now contends

that

and

his

because

guilty
the

plea

was

Government,

not

knowingly

Jackson,

and

the

voluntarily
court

agreed that Jackson was a career offender.
that

his

Maryland

conviction

do

not

1990

battery

qualify

as

conviction

predicate

made

erroneously

Jackson contends
and

1985

offenses

robbery

under

U.S.

Sentencing Guidelines Manual § 4B1.1 (2002).

These arguments,

however, are within the scope of the waiver.

We conclude that

the record discloses that Jackson validly waived the right to
appeal his sentence.

The language of the appeal waiver is clear

and unambiguous.
However, Jackson contends that the waiver should now
be

considered

invalid

and

unenforceable

because

of

the

beneficial change in law brought about by the decision in United
States v. Gomez, 690 F.3d 194 (4th Cir. 2012) (if an offense has
disjunctive

elements

that

enumerate

multiple

categories

of

crimes, at least one of which requires proof of violent force
and one which does not, a federal sentencing court may only then
apply

the

modified

categorical

approach

and

look

beyond

a

statutory definition to a limited list of judicial records found
in Taylor v. United States, 495 U.S. 575 (1990) and Shepard v.
United

States,

544

U.S.

13

(2005)).

Jackson

argues

that,

because the law has been clarified in his favor, the appeal
waiver is no longer valid.

He also contends that the appeal
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waiver does not bar a challenge to his conviction.
conviction

is

not

appellate

specifically

rights,

Jackson

included

does

challenging his conviction.

the

make

not

in

While the
waiver

any

of

arguments

Instead, he only challenges the

calculation of his sentence—something he explicitly waived, and
ineffective assistance related to that claim.
We reject Jackson’s challenge to the validity of the
waiver.

As

we

recently

Simmons-based 2

defendant’s

explained
challenge

in
to

concluding
his

career

that

a

offender

designation fell within the scope of an appeal waiver expressly
waiving

his

right

to

appeal

a

sentence

falling

within

the

advisory Guidelines range established at sentencing, “a party
cannot

ask

to

re-bargain

the

waiver

of

his

because of [post-plea] changes in the law.”
Copeland,

707

F.3d

quotation

marks

522,

and

529-30

ellipsis

(4th

right

to

appeal

United States v.

Cir.

omitted).

2013)

(internal

Accordingly,

we

determine that the appeal waiver is valid and enforceable as to
Jackson’s sentencing claim and dismiss the claim.
Next,
during

the

Jackson

plea

argues

that

negotiations

phase

counsel
by

was

ineffective

permitting

him

stipulate to the career offender designation.

to

He contends that

he was prejudiced because, without the stipulation, he would
2

United States v. Simmons, 649 F.3d 237 (4th Cir. 2011).

5

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have a Guidelines range of 63 to 78 months instead of 151 to 188
months.

Claims of ineffective assistance of counsel generally

are not cognizable on direct appeal.
F.3d 290, 295 (4th Cir. 1997).
claims

are

United States v. King, 119

However, ineffective assistance

cognizable
establishes

conclusively

on

direct

appeal

ineffective

if

the

assistance.

record

Massaro

v.

United States, 538 U.S. 1690, 1693-94 (2003); United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999).
To
must

show

demonstrate

that

his

ineffective

“counsel’s

assistance,

representation

a

defendant

fell

below

an

objective standard of reasonableness,” and that the error was
“prejudicial to the defense” such that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result

of

the

proceeding

would

have

been

different.”

Strickland v. Washington, 466 U.S. 668, 688, 692, 694 (1984).
Jackson contends that counsel should have raised a Shepard-based
challenge
Shepard

and

was

objected

not

to

decided

until

after Jackson was convicted.
it

is

undisputed

Therefore,

there

challenge,

and

Consequently,

that
was

the
there

all

no

the

career
2005,

enhancement.

approximately

two

years

At the time Jackson was sentenced,
his

reason

predicate
for

would

is

ineffective

conclusively on the record.
6

felonies

counsel

result
no

offender

not

have

to

qualified.

raise

been

assistance

such

a

different.
appearing

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We therefore grant in part the Government’s motion to
dismiss

the

appeal

and

dismiss

challenging Jackson’s sentence.

the

portion

of

the

appeal

We affirm the portion of the

appeal raising ineffective assistance of counsel.

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

7