US v. Eric Pepke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999928889-2]. Originating case number: 5:15-cr-00319-FL-1. Copies to all parties and the district court/agency [999963368]. [16-4271]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4271

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC MARTIN PEPKE,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:15-cr-00319-FL-1)

Submitted:

October 31, 2016

Before WILKINSON and
Senior Circuit Judge.

THACKER,

Decided:

Circuit

November 7, 2016

Judges,

and

HAMILTON,

Affirmed in part and dismissed in part by unpublished per curiam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

Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.
Jennifer P. May-Parker, Assistant United States
Attorney, Kristine L. Fritz, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Eric Martin Pepke pled guilty, in accordance with a written
plea agreement, to receipt of child pornography, in violation of
18

U.S.C.

§

2252(a)(2),

(b)(1)

(2012).

The

district

court

sentenced Pepke to 97 months’ imprisonment, to be followed by
lifetime supervised release.

Pepke timely appealed.

Pepke’s attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), finding no meritorious grounds
for

appeal,

but

questioning

whether

Pepke’s

sentence

was

reasonable.

Pepke filed a pro se supplemental brief, with a

supplement.

The Government has moved to dismiss the appeal on

the basis of Pepke’s waiver in his plea agreement of the right
to appeal his sentence.

We affirm in part and dismiss in part.

We review de novo the validity of an appeal waiver.

United

States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013).

“We

generally will enforce a waiver . . . if the record establishes
that the waiver is valid and that the issue being appealed is
within the scope of the waiver.”
670

F.3d

omitted).

532,

537

(4th

Cir.

United States v. Thornsbury,

2012)

(internal

quotation

marks

A defendant’s waiver is valid if he agreed to it

“knowingly and intelligently.”

United States v. Manigan, 592

F.3d 621, 627 (4th Cir. 2010).
Our review of the record leads us to conclude that Pepke
knowingly

and

voluntarily

waived
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the

right

to

appeal

his

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sentence,

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except

for

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claims

of

ineffective

assistance

or

prosecutorial misconduct not known to Pepke at the time of his
guilty plea. *
dismiss

and

We therefore grant the Government’s motion to
dismiss

Pepke’s sentence.

the

portion

of

the

appeal

pertaining

to

We note, however, that Pepke’s waiver of his

right to appeal his sentence does not preclude our review of
Pepke’s conviction or his challenges to his sentence based on
ineffective assistance or prosecutorial misconduct.
In his pro se supplemental brief, Pepke asserts that the
images to which he pled guilty do not depict child pornography
and that the images were “intrastate.”

This claim is belied by

the record.
Pepke argues that the seizure of his files violates the
Fourth Amendment because a detective accessed those files before
obtaining a search warrant.

This antecedent nonjurisdictional

allegation is waived by Pepke’s valid guilty plea.

Tollett v.

Henderson, 411 U.S. 258, 267 (1973).
Next,

Pepke

claims

that

the

prosecutor

made

false

statements at the arraignment and at the sentencing hearing.

To

establish prosecutorial misconduct, Pepke must demonstrate that
the prosecutor’s conduct was improper and that it prejudicially

*

Accordingly, we reject Pepke’s pro se claim that he did
not knowingly and voluntarily waive his right to appeal.

3

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affected his substantial rights.

United States v. Caro, 597

F.3d 608, 624-25 (4th Cir. 2010); see also United States v.
Armstrong,

517

U.S.

456,

464

(1996)

(noting

regularity accorded prosecutorial decisions).

presumption

of

Because Pepke did

not raise these claims in the district court, our review is for
plain error.

United States v. Alerre, 430 F.3d 681, 689 (4th

Cir. 2005).

We conclude that Pepke’s conclusory claims, which

fail to specify the substance of the prosecutor’s purportedly
false statements, fail to establish prosecutorial misconduct.
Finally,

Pepke

asserts

that

he

was

denied

effective

assistance of counsel because his attorney did not contact him a
week after sentencing, as promised, did not give him adequate
time to review “relevant documents,” and told him that he would
receive five years’ supervised release when he actually received
lifetime

supervision.

conclusively

appears

Unless
on

the

an

face

attorney’s
of

the

ineffectiveness

record,

ineffective

assistance claims are not generally addressed on direct appeal.
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).
Instead,

such

pursuant

to

sufficient

claims
28

should

U.S.C.

development

be

raised

§

2255

(2012),

of

the

record.

in
in

a

motion

order
United

Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).

to

brought
permit

States

v.

Because the

record does not conclusively establish ineffective assistance of

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counsel, we conclude that these claims should be raised, if at
all, in a § 2255 motion.
Pursuant to Anders, we have reviewed the entire record for
meritorious, nonwaived issues and have found none.
affirm in part and dismiss in part.

We therefore

This court requires that

counsel inform Pepke, in writing, of his right to petition the
Supreme Court of the United State for further review.

If Pepke

requests that such a petition be filed, but counsel believes
that the 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 of the motion was served on Pepke.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED IN PART; DISMISSED IN PART

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