United States v. Akmal Barnhill ( 2023 )

USCA4 Appeal: 21-4045 Doc: 53 Filed: 02/06/2023 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4045
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AKMAL JAMAL BARNHILL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, District Judge. (5:19-cr-00419-BO-1)
Submitted: February 1, 2023 Decided: February 6, 2023
Before WYNN and DIAZ, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Sarah M. Powell, Durham, North Carolina, for Appellant. G. Norman Acker,
III, Acting United States Attorney, David A. Bragdon, Assistant United States Attorney,
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Unpublished opinions are not binding precedent in this circuit.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:
Akmal Jamal Barnhill appeals his conviction and sentence after pleading guilty to
possession of a firearm by a felon in violation of 18 U.S.C. § 922(g). Barnhill contends
his guilty plea was involuntary and unknowing in violation of due process, because his trial
counsel was ineffective, and the factual basis was insufficient to support his plea. He also
contends his sentence is procedurally and substantively unreasonable. We affirm.
“[F]or a guilty plea to be valid, the Constitution imposes ‘the minimum requirement
that [the] plea be the voluntary expression of [the defendant’s] own choice.’” United States
v. Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010). “It must reflect a voluntary and intelligent
choice among the alternative courses of action open to the defendant.” Id. (internal
quotation marks omitted). “In evaluating the constitutional validity of a guilty plea, courts
look to the totality of the circumstances surrounding [it], granting the defendant’s solemn
declaration of guilt a presumption of truthfulness.” Id. (internal quotation marks omitted).
In federal cases, Rule 11 of the Federal Rules of Criminal Procedure “governs the
duty of the trial judge before accepting a guilty plea.” Boykin v. Alabama, 395 U.S. 238,
243 n.5 (1969). Rule 11 “requires a judge to address a defendant about to enter a plea of
guilty, to ensure that he understands the law of his crime in relation to the facts of his case,
as well as his rights as a criminal defendant.” United States v. Vonn, 535 U.S. 55, 62
(2002). “The court also must determine that the plea is voluntary and that there is a factual
basis for the plea.” United States v. Williams, 811 F.3d 621, 622 (4th Cir. 2016) (citing
Fed. R. Crim. P. 11(b)). The district court is not required to find a factual basis “at the
outset of the Rule 11 proceedings; it may defer its inquiry until sentencing.” United States
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v. Martinez, 277 F.3d 517, 531 (4th Cir. 2002). “The court also need not establish the
guilty plea’s factual basis through the plea colloquy; the court ‘may conclude that a factual
basis exists from anything that appears on the record.’” Id. (quoting United States v.
DeFusco, 949 F.2d 114, 120 (4th Cir. 1991)).
“[W]hen a defendant contests the validity of a guilty plea that he did not seek to
withdraw” in the district court, we review the challenge only for plain error. United States
v. Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 2015). We review the entire record to
evaluate a challenge to the validity of the plea. See Greer v. United States, 141 S. Ct. 2090,
2098 (2021); United States v. Vonn, 535 U.S. 55, 58-59 (2002); United States v. Heyward,
42 F.4th 460, 467 (4th Cir. 2022). We also limit our review to the record on appeal, i.e.,
the original papers and exhibits filed in the district court, the transcripts of proceedings,
and the certified docket sheet. See Heyward, 42 F.4th at 467 n.3 (declining to consider a
supplement to the record on appeal); cf. United States v. Frank, 8 F.4th 320, 333 (4th Cir.
2021) (noting this Court is “a ‘court of review, not first view’”).
Ineffective assistance of counsel claims are typically “litigated in the first instance
in the district court, the forum best suited to developing the facts necessary to determining
the adequacy of representation during an entire trial,” Massaro v. United States, 538 U.S.
500, 505 (2003), but we are permitted to and will consider such claims “on direct review
where the ineffectiveness of counsel ‘conclusively appears in the trial record itself,’”
United States v. Freeman, 24 F.4th 320, 331 (4th Cir. 2022) (en banc). To establish a claim
of ineffective assistance of counsel, a defendant must show (1) that counsel’s performance
was not objectively reasonable and (2) that counsel’s deficient performance prejudiced
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him. Freeman, 24 F.4th at 326. When the claim is made on direct appeal, we review the
claim de novo and “will reverse only if it ‘conclusively appears in the trial record itself
that the defendant was not provided . . . effective representation.’” Id.
We have reviewed the entire record and conclude that Barnhill’s guilty plea was
knowing and voluntary, and the district court did not plainly err in finding that a factual
basis supported the plea. We further conclude that the record does not conclusively show
that Barnhill’s trial counsel was ineffective or that Barnhill was prejudiced by any alleged
deficient performance. We therefore decline to consider his ineffective assistance claims
on direct appeal; and he should raise them, if at all, in a 28 U.S.C. § 2255 motion.
Barnhill also contends his sentence is procedurally and substantively unreasonable.
The Government contends that Barnhill waived his sentencing claims in his appeal waiver,
and it seeks to enforce the waiver. In response, Barnhill does not dispute that his appeal
waiver was knowing and voluntary, but he argues that his sentencing claims are not barred
by the waiver, because an appeal waiver will not bar “a colorable claim that the plea
agreement itself—and hence the waiver of appeal rights that it contains—is tainted by
constitutional error.” United States v. Attar, 38 F.3d 727, 733 n.2 (4th Cir. 1994).
“When the government seeks to enforce an appeal waiver and has not breached the
plea agreement, we will enforce the waiver if it is valid and if the issue being appealed falls
within the scope of the waiver.” United States v. Boutcher, 998 F.3d 603, 608 (4th Cir.
2021) (internal quotation marks omitted). “A ‘valid’ appeal waiver is one entered by the
defendant knowingly and intelligently, a determination that we make by considering the
totality of the circumstances.” Id. “When a district court questions a defendant during a
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Rule 11 hearing regarding an appeal waiver and the record shows that the defendant
understood the import of his concessions, we generally will hold that the waiver is valid.”
Id. We review this issue de novo. Id.We have reviewed the record and conclude that Barnhill’s appeal waiver was valid,
and his sentencing claims fall within the scope of the waiver. The Government does not
seek to bar Barnhill’s challenge to the validity of his guilty plea, but only his claims that
his sentence is procedurally and substantively unreasonable. Moreover, as we have already
concluded, Barnhill’s guilty plea was knowing and voluntary; and we conclude that he has
not asserted a colorable claim that his plea agreement was tainted by constitutional error.
See United States v. McGrath, 981 F.3d 248, 250 & n.2 (4th Cir. 2020).
Accordingly, we deny the pending motion to strike as moot and affirm the district
court’s judgment. * We dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
*
Because we have limited our review to the record on appeal, we deny the motion
to strike as moot. See Skyline Restoration, Inc. v. Church Mut. Ins. Co., 20 F.4th 825, 835
(4th Cir. 2021); Williams v. Lendmark Fin. Servs., Inc., 828 F.3d 309, 314 (4th Cir. 2016);
Am. Whitewater v. Tidwell, 770 F.3d 1108, 1121 n.6 (4th Cir. 2014).
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