US v. Robert Maillet

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00004-MR-DLH-1. Copies to all parties and the district court/agency. [999922256]. [15-4240]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4240

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT MAILLET,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:14-cr-00004-MR-DLH-1)

Submitted:

August 19, 2016

Decided:

September 2, 2016

Before SHEDD and HARRIS, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Dismissed by unpublished per curiam opinion.

Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Robert Maillet pled guilty, pursuant to a plea agreement, to
receiving

child

§ 2252A(a)(2)

pornography,

(2012),

and

in

violation

possessing

of

child

18

U.S.C.

pornography,

in

violation of 18 U.S.C. § 2252A(a)(5)(B) (2012). The district court
imposed a downward variant sentence of 148 months’ imprisonment
and a lifetime term of supervised release.

Counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious grounds for appeal.
supplemental
substantive

briefs,

Maillet

reasonableness

of

questioned

the

his

of

terms

In his pro se
procedural

and

imprisonment

and

supervised release and asserted that counsel rendered ineffective
assistance

at

directing

the

sentencing.
parties

to

We

ordered

address

supplemental

whether

the

briefing,

district

court

violated the Double Jeopardy Clause by convicting and sentencing
Maillet for both receiving and possessing child pornography.

The

Government now moves to dismiss the appeal pursuant to the appeal
waiver provision in Maillet’s plea agreement.
dismissal.

Maillet opposes

We grant the Government’s motion and dismiss the

appeal.
“We review the validity of an appeal waiver de novo, and will
enforce the waiver if it is valid and the issue appealed is within
the scope of the waiver.”

United States v. Copeland, 707 F.3d

522, 528 (4th Cir. 2013) (internal quotation marks omitted).
2

“The

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validity of an appeal waiver depends on whether the defendant
knowingly and intelligently agreed to waive the right to appeal.”
United States v. Blick, 408 F.3d 162, 169 (4th Cir. 2005).

To

determine whether a waiver is knowing and intelligent, we examine
“the

totality

of

the

circumstances

.

.

.

,

including

the

background, experience, and conduct of the accused.” Id. (internal
quotation

marks

omitted).

“Generally,

if

a

district

court

questions a defendant regarding the waiver of appellate rights
during the [plea] colloquy and the record indicates that the
defendant understood the full significance of the waiver, the
waiver is valid.”

Copeland, 707 F.3d at 528 (internal quotation

marks omitted).
In his plea agreement, Maillet waived his right to appeal his
convictions and “whatever sentence is imposed,” reserving only his
right to appeal based on ineffective assistance of counsel and
prosecutorial misconduct.

The language of this appeal waiver is

clear and unambiguous, and our review of the record reveals that
Maillet

understood

its

full

significance.

Accordingly,

we

conclude that Maillet’s appeal waiver is valid and enforceable.
We also conclude that Maillet’s double jeopardy argument and
his challenges to the reasonableness of his sentence fall squarely
within the scope of the waiver.

Although Maillet’s ineffective

assistance claims are not waived, they are not cognizable on direct
appeal “[b]ecause there is no conclusive evidence of ineffective
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assistance on the face of this record.”
821 F.3d 502, 508 (4th Cir. 2016).

United States v. Faulls,
Thus, Maillet’s “claim[s]

should be raised, if at all, in a 28 U.S.C. § 2255 motion.”

Id.

We have thoroughly reviewed the record in accordance with
Anders and have identified no potentially meritorious issues that
fall outside the scope of the appeal waiver.

We therefore grant

the Government’s motion and dismiss Maillet’s appeal.

This court

requires that counsel inform Maillet, in writing, of the right to
petition the Supreme Court of the United States for further review.
If Maillet requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation.

Counsel’s

motion must state that a copy thereof was served on Maillet.

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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