US v. James Lumsden

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:14-cr-00152-RJC-3. Copies to all parties and the district court/agency [999852766]. [15-4429]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4429

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES RICHARD LUMSDEN,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., District Judge. (3:14-cr-00152-RJC-3)

Submitted:

May 31, 2016

Decided:

June 14, 2016

Before GREGORY, WYNN, and FLOYD, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam
opinion.

Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for
Appellant.
Jill Westmoreland Rose, United States Attorney,
Anthony J. Enright, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
James Richard Lumsden appeals his convictions and 93-month
sentence following his guilty plea pursuant to a plea agreement
to

money

(2012),

laundering,

and

a

possession

violation
of

a

of

18

firearm

U.S.C.

in

§ 1956(a)(1)

furtherance

trafficking, a violation of 18 U.S.C. § 924(c) (2012).
challenges

his

assistance

of

convictions
counsel

and

and

sentence,

alleging

prosecutorial

of

drug

Lumsden

ineffective

misconduct.

Lumsden

also claims that the district court erred in denying his request
for new counsel, which rendered his waiver of appellate rights
involuntary, and denying his motion for a downward variance at
sentencing.

The Government argues that Lumsden’s appeal is — at

least in part — foreclosed by the waiver of appeal rights in his
plea agreement and that Lumsden’s remaining claims are without
merit.

For the following reasons, we affirm in part and dismiss

in part.
A defendant may, in a valid plea agreement, waive the right
to

appeal

under

18

U.S.C.

§ 3742

(2012).

Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).

United

States

v.

Generally, “if the

record establishes that the waiver is valid and that the issue
being

appealed

enforceable.
(4th

Cir.

is

within

the

scope

of

the

waiver,”

it

is

United States v. Thornsbury, 670 F.3d 532, 537
2012)

(internal

quotation

marks

omitted).

A

defendant’s waiver is valid if he agreed to it “knowingly and
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intelligently.”

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United States v. Manigan, 592 F.3d 621, 627

(4th Cir. 2010).

“Although the validity of an appeal waiver

often depends on the adequacy of the plea colloquy, the issue is
ultimately

evaluated

by

reference

to

the

totality

of

the

circumstances,” United States v. Davis, 689 F.3d 349, 355 (4th
Cir.

2012)

(internal

quotation

marks

omitted),

such

as

“the

experience and conduct of the accused, as well as the accused’s
educational background and familiarity with the terms of the
plea agreement.”

Thornsbury, 670 F.3d at 528.

In his plea agreement, Lumsden agreed to waive his right to
appeal

but

reserved

his

right

to

raise

on

appeal

issues

of

ineffective assistance of counsel and prosecutorial misconduct.
Lumsden challenges the validity of the waiver, arguing that the
district court’s denial of his request to substitute counsel
rendered

the

convinces

us

waiver
that

involuntary.
the

Our

of

court

did

not

district

review

the

record

abuse

its

discretion in denying the request for new counsel, see United
States

v.

Horton,

693

F.3d

463,

466-67

(4th

Cir.

2012)

(providing standard of review and factors courts consider in
reviewing

motions

to

substitute

counsel),

and

that

knowingly and voluntarily waived his appellate rights.

Lumsden
Because

Lumsden’s challenge to his sentence falls squarely within the
scope of that waiver, we dismiss the appeal of the sentence.

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Although Lumsden’s sentencing claim falls within the scope
of the waiver, Lumsden’s ineffective assistance of counsel and
prosecutorial misconduct claims fall outside the scope of the
waiver

and

are

subject

to

appellate

review.

Claims

of

ineffective assistance of counsel generally are not cognizable
on

direct

appeal,

unless

an

attorney’s

ineffectiveness

conclusively appears on the face of the record.

United States

v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).

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.
(4th

Cir.

United States v. Baptiste, 596 F.3d 214, 216 n.1

2010).

Because

the

record

does

not

conclusively

establish ineffective assistance of counsel, we conclude that
these claims should be raised, if at all, in a § 2255 motion,
and,

therefore,

we

decline

to

review

these

claims

on

direct

appeal.
Finally,
prosecutorial

Lumsden

argues

misconduct.

that

Because

the

Government

Lumsden

failed

engaged
to

in

allege

prosecutorial misconduct before the district court, we review
for plain error.

United States v. Alerre, 430 F.3d 681, 689

(4th Cir. 2005) (applying plain error standard to prosecutorial
misconduct claim); see United States v. Obey, 790 F.3d 545, 547
(4th

Cir.

2015)

(setting

forth

plain

error

standard).

We

conclude that Lumsden cannot show error, let alone plain error.
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To establish prosecutorial misconduct, Lumsden “must show (1)
that the prosecutor’s remarks or conduct were improper and (2)
that

such

substantial

remarks
rights

or
so

conduct
as

to

prejudicially

deprive

him

of

affected
a

fair

his

trial.”

United States v. Caro, 597 F.3d 608, 624-25 (4th Cir. 2010)
(internal quotation marks omitted).
Lumsden’s

claim

is

meritless,

as

Our review discloses that
he

fails

to

show

either

misconduct or prejudice.
Accordingly,

we

affirm

the appeal of the sentence.

Lumsden’s

convictions

and

dismiss

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.
AFFIRMED IN PART AND
DISMISSED IN PART

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