US v. Larry Aiken

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to dismiss appeal [999724836-2]. Originating case number: 5:14-cr-00022-RLV-DSC-1. Copies to all parties and the district court. [999779145]. [15-4380]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4380

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY WAYNE AIKEN,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge. (5:14-cr-00022-RLV-DSC-1)

Submitted:

February 29, 2016

Before KING and
Circuit Judge.

FLOYD,

Circuit

Decided:

Judges,

and

March 22, 2016

HAMILTON,

Senior

Dismissed by unpublished per curiam opinion.

Jorgelina E. Araneda, ARANEDA LAW FIRM, P.C., Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
Larry Wayne Aiken pled guilty, pursuant to a written plea
agreement, to possession of child pornography, in violation of
18 U.S.C. § 2252A(a)(5)(B) (2012).

The district court sentenced

Aiken to the statutory mandatory minimum sentence of 120 months’
imprisonment.
effective

On

appeal,

assistance

of

Aiken

argues

counsel.

The

that

he

was

Government

denied

seeks

to

enforce the appellate waiver provision of the plea agreement and
has moved to dismiss Aiken’s appeal.

In response, Aiken does

not challenge the validity of the waiver, see United States v.
Copeland, 707 F.3d 522, 528 (4th Cir. 2013), but asserts that
the

issue

he

raises

on

appeal

is

outside

the

scope

of

the

waiver, see United States v. Archie, 771 F.3d 217, 221 (4th Cir.
2014), cert. denied, 135 S. Ct. 1579 (2015).
In his plea agreement, Aiken agreed to waive his right to
appeal his conviction and sentence but reserved his right to
raise on appeal issues of ineffective assistance of counsel or
prosecutorial misconduct.

Thus, Aiken’s claim that counsel was

ineffective at sentencing is outside the scope of the waiver and
is

subject

Government’s

to

appellate

motion

to

review.
dismiss.

Accordingly,

we

Nevertheless,

deny

the

unless

an

attorney’s ineffectiveness conclusively appears on the face of
the

record,

ineffective

assistance

addressed on direct appeal.

claims

generally

are

not

United States v. Benton, 523 F.3d
2

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424, 435 (4th Cir. 2008).

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Instead, such claims should be raised

in a motion brought pursuant to 28 U.S.C. § 2255 (2012), in
order to permit sufficient development of the record.

United

States

2010).

Because

v.

Baptiste,

the

ineffective

596

F.3d

record

here

assistance

of

214,

does

216

not

counsel,

we

n.1

(4th

Cir.

conclusively
conclude

establish

that

claim should be raised, if at all, in a § 2255 motion.

Aiken’s
Thus, we

decline to review this claim on direct appeal.
Accordingly, we dismiss the appeal.

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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