USA v. Lawrence Calloway

Filing

Per Curiam OPINION filed: granting motion to withdraw as counsel filed by Mr. Kevin M. Cafferkey and the appeal is DISMISSED, decision not for publication. Boyce F. Martin , Jr., Circuit Judge; Jeffrey S. Sutton, Circuit Judge and Joseph M. Hood, U.S. District Judge.

Case: 12-4177

Document: 006111578889

Filed: 02/04/2013

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0129n.06
No. 12-4177

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Feb 04, 2013

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LAWRENCE A. CALLOWAY,
Defendant-Appellant.

)
)
)
)
)
)
)
)
)

DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
OHIO

Before: MARTIN and SUTTON, Circuit Judges; HOOD, District Judge.*

PER CURIAM. Lawrence A. Calloway, who is represented by counsel, appeals a district
court judgment following his guilty plea to conspiring to commit wire fraud in a mortgage fraud
scheme. See 18 U.S.C. §§ 371, 1343. Under the terms of his plea agreement, Calloway waived his
right to appeal his conviction and sentence. The agreement recommended a total offense level of
twelve, based in part on a loss to the lender in the amount of $294,106. However, the agreement did
not recommend a criminal history category.
Calloway’s presentence report calculated a loss in excess of $400,000, a total offense level
of thirteen, and a criminal history category of III. Calloway filed a sentencing memorandum
requesting that the district court follow the plea agreement and consider that he was seventy years
old with health concerns.
At sentencing, the district court adopted the loss calculation from the plea agreement and
granted a government motion to reduce the offense level by two due to Calloway’s substantial

*

The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

Case: 12-4177

Document: 006111578889

Filed: 02/04/2013

Page: 2

No. 12-4177
-2assistance. See USSG § 5K1.1 The result of the loss calculation and downward departure resulted
in an advisory sentencing guidelines range of ten to sixteen months of imprisonment. Upon
consideration of the advisory range and the sentencing factors set forth in 18 U.S.C. § 3553(a), the
district court imposed a split sentence of twelve months, with the first six months to be served in
prison. After release from prison, Calloway would serve six months in home detention, and
simultaneously begin a three-year term of supervised release. The court also imposed restitution in
the amount of $294,160.
Calloway’s attorney has filed an appellate brief with this Court and has moved to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1967). After a review of the record, counsel
expressed the opinion that there were no meritorious grounds for appeal, but nonetheless raised the
issues of whether the appellate waiver was valid, whether the sentence was reasonable, and whether
trial counsel rendered ineffective assistance. Calloway was advised of his right to file a response,
but has not done so.
Counsel’s motion to withdraw is well taken. Counsel has filed an acceptable Anders brief,
and our full examination of all the proceedings leads us to agree that an appeal would be wholly
without merit. See id. at 744.
In his plea agreement, Calloway waived his right to appeal his conviction, except upon the
following grounds: 1) ineffective assistance of counsel; 2) prosecutorial misconduct; and 3) his
sentence, but only if the sentence exceeded the statutory maximum or the guidelines range as
calculated in accordance with the plea agreement. A waiver provision in a plea agreement is valid
if it is made knowingly and voluntarily. United States v. Wilson, 438 F.3d 672, 673 (6th Cir. 2006).
A valid waiver bars a defendant from bringing any type of claim not permitted by the agreement.
United States v. Sharp, 442 F.3d 946, 949 (6th Cir. 2006).
Calloway’s waiver is not invalid. A review of the record reveals that the district court
ensured that Calloway knowingly and voluntarily waived his appellate rights. At the plea hearing,

Case: 12-4177

Document: 006111578889

Filed: 02/04/2013

Page: 3

No. 12-4177
-3the court reviewed the appellate waiver provision with Calloway and Calloway acknowledged that
he understood the terms and consequences of the waiver. Calloway also confirmed that he had read
his plea agreement, had reviewed the agreement with his lawyer, and was not pleading guilty as a
result of pressure or threats.
The appellate waiver bars review of Calloway’s sentence. Although the waiver permits
review of a claim of ineffective assistance of counsel, we decline to address the issue at this time.
Claims of ineffective assistance of counsel are disfavored on direct appeal and are more
appropriately brought by filing a 28 U.S.C. § 2255 motion. Massaro v. United States, 538 U.S. 500,
504–07 (2003); United States v. Sypher, 684 F.3d 622, 626 (6th Cir. 2012). Because nothing in the
record suggests that Calloway misunderstood the waiver of his appellate rights and there are no other
issues that may presently be reviewed, we will dismiss the appeal. See United States v. McGilvery,
403 F.3d 361, 363 (6th Cir. 2005).
We grant counsel’s motion to withdraw and dismiss the appeal.