United States v. Jon Thomas , 678 F. App'x 92 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4416
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JON JAMES THOMAS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:15-cr-00091-F-1)
Submitted: February 16, 2017 Decided: February 24, 2017
Before AGEE and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM
Jon James Thomas pled guilty, in accordance with a written
plea agreement, to one count of receipt of child pornography, in
violation of 18 U.S.C. § 2252(a)(2) (2012). The district court
sentenced Thomas to 78 months’ imprisonment, to be followed by a
lifetime term of supervised release. Thomas timely appealed.
Thomas’ attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), certifying that there are no
meritorious grounds for appeal, but questioning the substantive
reasonableness of the lifetime term of supervision. Thomas
filed a pro se supplemental brief raising the same and other
issues. The Government has moved to dismiss the appeal on the
basis of the waiver in Thomas’ plea agreement pursuant to which
Thomas waived his 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.” United States v. Thornsbury,
670 F.3d 532, 537 (4th Cir. 2012) (alteration and internal
quotation marks omitted). 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).
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Our review of the record leads us to conclude that Thomas
knowingly and voluntarily waived the right to appeal his within-
Guidelines sentence, except for claims of ineffective assistance
of counsel or prosecutorial misconduct not known to Thomas at
the time of his guilty plea. We therefore grant the
Government’s motion to dismiss and dismiss that portion of this
appeal pertaining to Thomas’ sentence.
Thomas’ waiver of his right to appeal his sentence does
not, however, preclude our review of the validity of Thomas’
guilty plea, which Thomas challenges in his pro se supplemental
brief. Thomas first asserts that his guilty plea was induced by
a promise of a five-year term of supervised release and that he
would not have pled guilty had he been more fully apprised of
how the results of his polygraph examination could have been
used at trial. These claims are undermined by Thomas’ testimony
to the contrary at his Rule 11 hearing. Specifically, Thomas
testified that his guilty plea was not the result of any threats
or promises and that he had not been promised any particular
sentence. Thomas further averred that he was fully satisfied
with his attorney’s services. Such statements carry a strong
presumption of veracity, and the record offers no reason to
doubt their truth. Blackledge v. Allison, 431 U.S. 63, 74
(1977) (“Solemn declarations in open court carry a strong
presumption of verity.”); Fields v. Att’y Gen., 956 F.2d 1290,
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1299 (4th Cir. 1992) (“Absent clear and convincing evidence to
the contrary, a defendant is bound by the representations he
makes under oath during a plea colloquy.”).
Thomas also contends that he was denied effective
assistance of counsel because his attorney told him that he
would receive a five-year term of supervised release when he
actually received lifetime supervision. Unless an attorney’s
ineffectiveness conclusively appears on the face of the 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 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 does not conclusively establish ineffective assistance of
counsel, we conclude that this claim should be raised, if at
all, in a § 2255 motion.
Pursuant to Anders, we have reviewed the entire record for
any meritorious issues that fall outside the scope of the appeal
waiver and have found none. We therefore affirm the judgment in
part and dismiss this appeal in part. This court requires that
counsel inform Thomas, in writing, of his right to petition the
Supreme Court of the United State for further review. If Thomas
requests that such a petition be filed, but counsel believes
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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
Thomas. 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 IN PART;
DISMISSED IN PART
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