US v. Timothy Antaine Baxter
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:15-cr-00170-RJC-1 Copies to all parties and the district court/agency. . [16-4551]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
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)
March 14, 2017
March 16, 2017
Before FLOYD and HARRIS, Circuit Judges, and DAVIS, Senior Circuit
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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 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.”
United States v. Adams, 814 F.3d 178,
circumstances, a properly conducted Rule 11 colloquy establishes
the validity of the waiver.”
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.
Government has not invoked the waiver, however, it does not limit
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,
awareness of the relevant circumstances and likely consequences.”
(internal quotation marks omitted).
Before accepting a guilty
plea, a district court must ensure that the plea is knowing,
voluntary, and supported by an independent factual basis.
Crim. P. 11(b); United States v. DeFusco, 949 F.2d 114, 116 (4th
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
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
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).
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
This review entails appellate consideration of both the
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procedural and substantive reasonableness of the sentence.
552 U.S. at 51.
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.
erroneous facts, and sufficiently explained the chosen sentence.
Furthermore, Baxter’s sentence of 86 months fell below the range
Baxter’s sentence is reasonable.
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,
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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These claims should be raised, if at all, in a § 2255
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.
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.
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.
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