US v. Timothy Antaine Baxter

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:15-cr-00170-RJC-1 Copies to all parties and the district court/agency. [1000043195]. [16-4551]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4551

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY ANTAINE BAXTER,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (3:15-cr-00170-RJC-1)

Submitted:

March 14, 2017

Decided:

March 16, 2017

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

Affirmed by unpublished per curiam opinion.

Dennis E. Jones, DENNIS E. JONES, P.L.C., Abingdon, Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:
Timothy Antaine Baxter appeals his conviction and sentence of
86 months of imprisonment for conspiracy to distribute and possess
with intent to distribute cocaine and cocaine base, in violation
of 21 U.S.C. § 846 (2012).

Appellate counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), concluding
that there are no meritorious issues for appeal, but questioning
whether Baxter’s appellate waiver is valid, whether the sentence
imposed by the district court was reasonable, and whether Baxter
received ineffective assistance of counsel.

We affirm.

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.”
182

(4th

Cir.

United States v. Adams, 814 F.3d 178,

2016).

“In

the

absence

of

extraordinary

circumstances, a properly conducted Rule 11 colloquy establishes
the validity of the waiver.”

Id.

Based on our review of the record, we conclude that Baxter’s
Rule 11 colloquy was properly conducted, and Baxter knowingly and
voluntarily agreed to waive his appellate rights.
we conclude that Baxter’s appellate waiver is valid.

Consequently,
Because the

Government has not invoked the waiver, however, it does not limit
our review.

See United States v. Poindexter, 492 F.3d 263, 271

(4th Cir. 2007).

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Next, a guilty plea is valid where the defendant voluntarily,
knowingly,

and

intelligently

pleads

guilty

“with

sufficient

awareness of the relevant circumstances and likely consequences.”
United

States

v.

Fisher,

711

F.3d

(internal quotation marks omitted).

460,

464

(4th

Cir.

2013)

Before accepting a guilty

plea, a district court must ensure that the plea is knowing,
voluntary, and supported by an independent factual basis.

Fed. R.

Crim. P. 11(b); United States v. DeFusco, 949 F.2d 114, 116 (4th
Cir. 1991).
Because Baxter neither raised an objection during the Fed. R.
Crim. P. 11 proceeding nor moved to withdraw his guilty plea in
the district court, we review his Rule 11 proceeding for plain
error.

United States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014).

Our review of the record reveals that the district court fully
complied with Rule 11 in accepting Baxter’s guilty plea after a
thorough hearing.

Accordingly, we conclude that his plea was

knowing and voluntary, see Fisher, 711 F.3d at 464, and thus “final
and binding,” United States v. Lambey, 974 F.2d 1389, 1394 (4th
Cir. 1992) (en banc).
We

review

deferential

Baxter’s

sentence

abuse-of-discretion

for

reasonableness

standard.”

United

“under

a

States v.

McCoy, 804 F.3d 349, 351 (4th Cir. 2015) (quoting Gall v. United
States, 552 U.S. 38, 41 (2007)), cert. denied, 137 S. Ct. 320
(2016).

This review entails appellate consideration of both the
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procedural and substantive reasonableness of the sentence.
552 U.S. at 51.

Gall,

We presume that a sentence imposed within the

properly calculated Sentencing Guidelines range is reasonable.
United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
We have reviewed the record and conclude that the court
properly calculated the Guidelines range, treated the Guidelines
as advisory rather than mandatory, gave the parties an opportunity
to argue for an appropriate sentence, considered the 18 U.S.C.
§ 3353(a)

factors,

selected

a

sentence

not

based

on

clearly

erroneous facts, and sufficiently explained the chosen sentence.
Furthermore, Baxter’s sentence of 86 months fell below the range
recommended

by

the

Guidelines.

Therefore,

we

conclude

that

Baxter’s sentence is reasonable.
Finally,

a

prisoner

“may

raise

a

claim

of

ineffective

assistance of counsel in the first 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

(alteration

F.3d

omitted).

238,

241

(4th

Cir.

2014)

and

ellipsis

Absent such a showing, ineffective assistance 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 v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
Because the record here does not conclusively establish the alleged
grounds for Baxter’s claims, Baxter does not meet this demanding
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standard.

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These claims should be raised, if at all, in a § 2255

motion.
In accordance with Anders, we have reviewed the entire record
in this case and have found no meritorious issues for appeal.
therefore affirm the judgment of the district court.

We

This court

requires that counsel inform Baxter, in writing, of the right to
petition the Supreme Court of the United States for further review.
If Baxter 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 Baxter.
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

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