United States v. Stephen Callis , 685 F. App'x 283 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4411
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEPHEN T. CALLIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. John A. Gibney, Jr., District Judge. (3:16-cr-00003-JAG-1)
Submitted: April 20, 2017 Decided: April 24, 2017
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam opinion.
Mark A. Yurachek, MARK ALLEN YURACHEK & ASSOCIATES, Falls Church,
Virginia, for Appellant. Heather Hart Mansfield, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stephen T. Callis appeals his convictions and the 240-month sentence imposed
after he pled guilty, pursuant to a plea agreement, to coercion and enticement of a minor,
in violation of 18 U.S.C. § 2422(b) (2012); and sex trafficking of children, in violation of
18 U.S.C. § 1591(a)(l) (2012). Counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), conceding there are no meritorious issues for appeal. Callis has not
filed a pro se supplemental brief, despite receiving notice of his right to do so. The
Government has filed a motion to dismiss the appeal based on the appellate waiver in
Callis’ plea agreement. We affirm in part, and dismiss in part.
A defendant may waive the right to appeal if that waiver is knowing and
intelligent. See United States v. Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). Our
independent review of the record supports the conclusion that Callis voluntarily and
knowingly waived his right to appeal his convictions and any sentence imposed within
the statutory maximum. Thus, we conclude that the waiver is valid and enforceable.
Even a valid waiver does not waive all appellate claims, however. Specifically, a
valid appeal waiver does not preclude a challenge to a sentence on the ground that it
exceeds the statutory maximum or is based on a constitutionally impermissible factor
such as race, arises from the denial of a motion to withdraw a guilty plea based on
ineffective assistance of counsel, or relates to claims concerning a violation of the Sixth
Amendment right to counsel in proceedings following the guilty plea. See United States
v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005); United States v. Craig, 985 F.2d 175, 178
(4th Cir. 1993). Moreover, the appellate waiver in Callis’ plea agreement did not waive:
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(1) any sentencing challenges he may have if his sentence was in excess of the statutory
maximum applicable to his crimes; or (2) ineffective assistance of counsel claims. Callis’
sentence is below the statutory maximum applicable to his crimes. To the extent Callis
suggests that counsel provided ineffective assistance, we conclude that ineffective
assistance does not conclusively appear on the record and, thus, we decline to address this
claim on direct appeal. * United States v. Powell, 680 F.3d 350, 359 (4th Cir. 2012).
Accordingly, we grant the Government’s motion to dismiss the appeal, in part.
We are charged under Anders with reviewing the record for unwaived error, and our
review of the record in this case revealed no unwaived meritorious issues for appeal. We
therefore dismiss the appeal in part and affirm in part. This court requires that counsel
inform Callis, in writing, of his right to petition the Supreme Court of the United States
for further review. If Callis requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move this court for leave to
withdraw from representation. Counsel’s motion must state that a copy thereof was
served on Callis. We dispense with oral argument because the facts and legal contentions
*
Callis’ ineffective assistance of counsel claim is more appropriately raised, if at
all, in a 28 U.S.C. § 2255 (2012) motion. See United States v. Baldovinos, 434 F.3d 233,
239 & n.4 (4th Cir. 2006). We express no opinion as to the merits of Callis’ ineffective
assistance of counsel claim.
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are adequately presented in the materials before this court and argument would not aid in
the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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