US v. Ricky Simpson
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting in part motion to dismiss appeal [999611041-2] Originating case number: 2:14-cr-00007-D-1 Copies to all parties and the district court/agency. [999683769].. [15-4115]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4115
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICKY NELSON SIMPSON, a/k/a Bossman,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. James C. Dever,
III, Chief District Judge. (2:14-cr-00007-D-1)
Submitted:
October 20, 2015
Decided:
October 22, 2015
Before MOTZ, KEENAN, and THACKER, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Sarah Jessica Farber, FARBER LAW FIRM, Raleigh, North Carolina,
for Appellant.
Kristine L. Fritz, OFFICE OF THE UNITED STATES
ATTORNEY, 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Unpublished opinions are not binding precedent in this circuit.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:
Ricky Nelson Simpson appeals the 96-month, below-Guidelines
sentence
imposed
after
he
pled
guilty,
pursuant
to
a
plea
agreement, to one count of conspiracy to distribute and possess
with intent to distribute 28 grams or more of cocaine base and
500
grams
or
more
of
§§ 841(b)(1)(B), 846
cocaine,
(2012).
in
violation
Counsel
21
U.S.C.
filed
has
of
a
brief,
pursuant to Anders v. California, 386 U.S. 738 (1967), in which
she
challenges
the
substantive
reasonableness
of
Simpson’s
sentence, but recognizes that Simpson waived his right to appeal
his sentence in his plea agreement.
supplemental
brief
asserting
Simpson has filed a pro se
that
counsel
was
ineffective,
thereby resulting in the denial of his due process rights.
The
Government has filed a motion to dismiss the appeal based on the
appellate
waiver
in
Simpson’s
plea
agreement.
We
affirm
in
part, and dismiss in part.
A defendant may waive the right to appeal if that waiver is
knowing and intelligent.
See United States v. Poindexter, 492
F.3d 263, 270 (4th Cir. 2007).
Our independent review of the
record
that
supports
knowingly
waived
sentence.
Thus,
the
his
we
conclusion
right
conclude
to
appeal
that
enforceable.
2
Simpson
the
voluntarily
and
conviction
and
his
waiver
is
valid
and
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However, even a valid waiver does not waive all appellate
claims.
Specifically, a valid appeal waiver does not preclude a
challenge
to
statutory
a
sentence
maximum
or
on
is
the
ground
based
that
on
a
it
exceeds
the
constitutionally
impermissible factor such as race, arises from the denial of a
motion to withdraw a guilty plea based on ineffective assistance
of counsel, or relates to claims concerning a violation of the
Sixth Amendment right to counsel in proceedings following the
guilty plea.
See United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005); United States v. Craig, 985 F.2d 175, 178 (4th
Cir. 1993).
Moreover, the appellate waiver in Simpson’s plea
agreement did not waive:
(1) any sentencing challenges he may
have if his sentence was in excess of the applicable advisory
Guidelines range established at sentencing; or (2) ineffective
assistance
of
counsel
or
prosecutorial
misconduct
claims
known to Simpson at the time of his guilty plea.
not
Simpson’s
sentence is below the Guidelines range established at sentencing
and,
thus,
counsel’s
appellate waiver.
claim
is
squarely
foreclosed
by
the
Accordingly, we grant the Government’s motion
to dismiss the appeal, in part.
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In accordance with Anders, we have reviewed the record for
any potentially meritorious, unwaived issues, * and we have found
none.
We therefore dismiss the appeal in part and affirm in
part.
This
writing,
of
court
his
requires
right
to
that
counsel
petition
the
United States for further review.
inform
Supreme
Simpson,
Court
of
in
the
If Simpson requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move this court for leave
to withdraw from representation.
Counsel’s motion must state
that a copy thereof was served on Simpson.
oral
argument
adequately
because
presented
in
the
the
facts
and
materials
We dispense with
legal
contentions
before
this
court
are
and
argument would not aid in the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
*
To the extent Simpson suggests that counsel provided
ineffective assistance, we conclude that ineffective assistance
does not conclusively appear on the record.
See United States
v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
4
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