US v. Gary Easterling
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999514828-2] Originating case number: 3:13-cr-00114-1 Copies to all parties and the district court. [999582321]. [14-4719]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4719
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY D. EASTERLING, a/k/a Gary Easterling, a/k/a Gary Smith,
a/k/a Chew, a/k/a Black,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.
Robert C. Chambers,
Chief District Judge. (3:13-cr-00114-1)
Submitted:
April 17, 2015
Decided:
May 13, 2015
Before THACKER and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Stephen C. Leckar, KALBIAN HAGERTY LLP, Washington, D.C., for
Appellant.
Joseph Franklin Adams, OFFICE OF THE UNITED STATES
ATTORNEY, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Gary D. Easterling (“Appellant”) appeals his conviction and
the 135-month sentence imposed by the district court following
his guilty plea to possession with intent to distribute heroin
in
violation
of
Appellant’s
21
U.S.C.
California,
386
U.S.
meritorious
grounds
841(a)(1)
filed
counsel
§
a
brief
738
for
(1967),
(2012).
pursuant
asserting
appeal.
On
to
Anders
that
Appellant
appeal,
he
filed
v.
found
no
pro
se
a
supplemental brief in which he alleged that trial counsel was
ineffective for failing to (1) adequately argue his Speedy Trial
Act
claims;
appeal
the
(2)
reserve
district
in
court’s
the
plea
denial
of
agreement
his
his
motion
right
to
to
dismiss
based on alleged Speedy Trial Act violations; and (3) challenge
the Government’s standing to prosecute because of irregularities
in
the
grand
jury
proceedings
before
counsel
advised
him
to
plead guilty.
The Government has filed a motion to dismiss Appellant’s
appeal
based
agreement.
on
the
appellate
waiver
provision
in
the
plea
Neither Appellant nor his counsel oppose the motion.
We grant the Government’s motion.
We review de novo a defendant’s waiver of appellate rights.
United States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013).
“A defendant may waive the right to appeal his conviction and
sentence so long as the waiver is knowing and voluntary.”
2
Id.
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(internal quotation marks omitted).
To determine whether the
waiver was knowing and voluntary, we look to the totality of the
circumstances.
See United States v. General, 278 F.3d 389, 400
(4th Cir. 2002).
“Generally, if a district court questions a
defendant regarding the waiver of appellate rights during the
Rule 11 colloquy and the record indicates that the defendant
understood the full significance of the waiver, the waiver is
valid.”
Copeland,
omitted).
707
F.3d
at
528
(internal
quotation
marks
Our review of the record leads us to conclude that,
under the totality of the circumstances, Appellant’s waiver of
appellate
rights
was
knowing
and
voluntary,
and
the
waiver
provision is therefore valid and enforceable.
We
will
enforce
a
valid
waiver
so
long
as
“the
issue
appealed is within the scope of the waiver.”
Copeland, 707 F.3d
at 528 (internal quotation marks omitted).
We conclude that
all of the issues raised on appeal, other than the ineffective
assistance claims, fall within the scope of the appellate waiver
provision, as Appellant exempted from the waiver provision only
the
right
appeal.
the
to
raise
ineffective
assistance
claims
on
direct
Therefore, we grant the Government’s motion and dismiss
appeal
conviction
to
and
the
extent
sentence
on
that
Appellant
grounds
assistance of counsel.
3
other
challenges
than
his
ineffective
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Turning to the ineffective assistance claims, we find that
the
record
does
not
conclusively
representation was deficient.
demonstrate
that
counsel’s
See United States v. Galloway,
749 F.3d 238, 241 (4th Cir.), cert. denied, 135 S. Ct. 215
(2014); see also Strickland v. Washington, 466 U.S. 668, 688,
694
(1984).
Thus,
Appellant’s
claims
must
be
motion filed pursuant to 28 U.S.C. § 2255 (2012).
749 F.3d at 241.
brought
in
a
See Galloway,
Accordingly, we decline to consider these
claims on direct appeal.
In
accordance
with
Anders,
we
have
reviewed
the
entire
record and have found no unwaived and potentially meritorious
issues for review.
We therefore dismiss the appeal.
This court
requires that counsel inform Appellant, in writing, of his right
to petition the Supreme Court of the United States for further
review.
If Appellant requests that a petition be filed, but
counsel
believes
that
counsel
may
in
move
representation.
such
this
a
petition
court
for
would
leave
to
be
frivolous,
withdraw
from
Counsel’s motion must state that a copy thereof
was served on Appellant.
We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials
before
this
court
and
argument
would
not
aid
the
decisional process.
DISMISSED
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