United States v. Armando Tagle , 600 F. App'x 92 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4516
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ARMANDO JIMENEZ TAGLE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:12-cr-00295-MOC-DCK-1)
Submitted: January 29, 2015 Decided: February 5, 2015
Before WILKINSON, MOTZ, and KEENAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Murray Kamionski, LAW OFFICE OF MURRAY KAMIONSKI, Manhattan
Beach, California, for Appellant. Anne M. Tompkins, United
States Attorney, William M. Miller, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Armando Jimenez Tagle pleaded guilty pursuant to a
plea agreement to conspiracy to possess with intent to
distribute fifty grams or more of methamphetamine in violation
of 21 U.S.C. §§ 841(b)(1)(A), 846 (2012). After departing
downward, the court sentenced Tagle to 138 months’ imprisonment,
at the bottom of the advisory Guidelines range. Tagle appeals,
alleging ineffective assistance of counsel and challenging his
sentence.
Tagle asserts that counsel was ineffective at
sentencing because she did not object to his 138-month sentence
on the ground that Tagle should receive credit for the time he
spent in state custody on related charges prior to his transfer
to federal court. 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).
Our review of the record discloses that counsel raised
the issue of state custody credit at the sentencing hearing, and
the judgment reflects the district court’s view that Tagle
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should be granted credit for time served on related state
charges. Accordingly, because there is no demonstrated evidence
of ineffective assistance of counsel on the face of the record,
we reject Tagle’s argument and conclude that this claim should
be raised, if at all, in a § 2255 motion.
Next, Tagle challenges the length of his sentence,
arguing that he was not given credit for time he spent in state
custody on related charges. The government asserts that Tagle
knowingly and intelligently waived his right to appeal his
sentence in his plea agreement, and that his challenge to the
sentence falls within the scope of the agreement.
We review the validity of an appellate waiver de novo.
United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert.
denied, 134 S. Ct. 126 (2013). “A defendant may waive the right
to appeal his conviction and sentence so long as the waiver is
knowing and voluntary.” Id. (internal quotation marks omitted).
“To determine whether a waiver is knowing and intelligent, we
examine the totality of the circumstances, including the
experience and conduct of the accused, as well as the accused’s
educational background and familiarity with the terms of the
plea agreement.” United States v. Thornsbury, 670 F.3d 532, 537
(4th Cir. 2012) (internal quotation marks omitted). Generally,
if the district court fully questions the defendant regarding
the waiver of his right to appeal during the plea colloquy, the
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waiver is both valid and enforceable. United States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005). We “will enforce the waiver
if it is valid and the issue appealed is within the scope of the
waiver.” Copeland, 707 F.3d at 528 (internal quotation marks
omitted).
Our review of the record confirms that, under the
totality of the circumstances, Tagle’s waiver of his appellate
rights was knowing and voluntary. Tagle waived his right to
appeal his conviction and sentence, with the exception of claims
of ineffective assistance of counsel and prosecutorial
misconduct. We conclude that his challenge to the length and
calculation of his sentence falls within the scope of the valid
and enforceable waiver, and therefore dismiss this portion of
the appeal. ∗
We accordingly affirm the district court’s judgment in
part, and dismiss in part. We dispense with oral argument
because the facts and legal contentions are adequately presented
∗
In any event, we note that the district court did not have
the authority to determine the extent of credit toward the
service of a term of imprisonment for time spent in official
detention at sentencing. See 18 U.S.C. § 3585(b); United States
v. Wilson, 503 U.S. 329, 334 (1992). Only the Attorney General,
acting through the Bureau of Prisons, may compute sentencing
credit. Id. at 334-35.
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in the materials before this Court and argument would not aid
the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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