US v. Julian Breslow

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999694327-2]. Originating case number: 7:14-cr-00008-D-1. Copies to all parties and the district court. [999766984].. [15-4378]

Appeal: 15-4378

Doc: 40

Filed: 03/03/2016

Pg: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4378

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JULIAN MARIE BRESLOW,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:14-cr-00008-D-1)

Submitted:

February 26, 2016

Before DIAZ and
Circuit Judge.

THACKER,

Circuit

Decided:

Judges,

and

March 3, 2016

DAVIS,

Senior

Dismissed by unpublished per curiam opinion.

Daniel M. Blau, ROBERT H. HALE, JR. & ASSOCIATES ATTORNEYS AT
LAW, PC, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.

Appeal: 15-4378

Doc: 40

Filed: 03/03/2016

Pg: 2 of 4

PER CURIAM:
Julian Marie Breslow seeks to appeal her conviction and
sentence after pleading guilty.

Breslow’s attorney has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),
concluding that there are no meritorious grounds for appeal but
raising

the

issues

of

whether

Breslow

received

ineffective

assistance of counsel and whether the district court plainly
erred at sentencing by relying on information in the presentence
report obtained from grand jury testimony.
moved

to

dismiss

claim

is

barred

the
by

appeal,

Breslow’s

contending
waiver

of

The Government has
that
the

the
right

sentencing
to

appeal

included in the plea agreement, and the ineffective assistance
claim is not cognizable on direct appeal since the record does
not conclusively show ineffective assistance.

Breslow has filed

a pro se supplemental brief further arguing that she received
ineffective assistance of counsel.
“Plea

bargains

rest

on

We dismiss the appeal.

contractual

principles,

party should receive the benefit of its bargain.”
v.

Blick,

408

F.3d

162,

173

(4th

Cir.

internal quotation marks omitted).
right

to

appeal

his

conviction

each

United States
(citation

and

“A defendant may waive the

and

waiver is knowing and voluntary.”

2005)

and

sentence

so

long

as

the

United States v. Davis, 689

F.3d 349, 354 (4th Cir. 2012) (citing United States v. Marin,
961 F.2d 493, 496 (4th Cir. 1992)).
2

We review the validity of

Appeal: 15-4378

Doc: 40

Filed: 03/03/2016

Pg: 3 of 4

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.”
Id. at 354-55 (citing Blick, 408 F.3d at 168).
Upon review of the plea agreement and the transcript of the
Fed. R. Crim. P. 11 hearing, we conclude that Breslow knowingly
and voluntarily waived her right to appeal her conviction and
sentence, and her sentencing claim is within the scope of the
waiver.

Moreover, in accordance with Anders, we have reviewed

the record for any potentially meritorious issues that might
fall outside the scope of the waiver and have found none.
As for Breslow’s ineffective assistance claims, “[i]t is
well

established

ineffective

that

assistance

a

defendant

of

counsel

may
in

raise

the

[a]

first

claim

of

instance

on

direct appeal if and only if it conclusively appears from the
record that . . . counsel did not provide effective assistance.”
United

States

v.

Galloway,

749

F.3d

238,

241

(4th

Cir.)

(citation and internal quotation marks omitted), cert. denied,
135 S. Ct. 215 (2014).

We have reviewed the record and conclude

that it does not conclusively establish ineffective assistance
of Breslow’s trial counsel, and her claims should be raised, if
at all, in a motion pursuant to 28 U.S.C. § 2255 (2012).
Accordingly, we grant the Government’s motion to dismiss
the appeal.

This court requires that counsel inform his or her

client, in writing, of his or her right to petition the Supreme
3

Appeal: 15-4378

Doc: 40

Filed: 03/03/2016

Pg: 4 of 4

Court of the United States for further review.

If the client

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 the client.
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

4