United States v. Joseph Leonard , 547 F. App'x 325 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4834
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH ALAN LEONARD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (7:12-cr-00040-BR-1)
Submitted: October 24, 2013 Decided: December 4, 2013
Before SHEDD, DUNCAN, and WYNN, Circuit Judges.
Affirmed in part, dismissed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, 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Unpublished opinions are not binding precedent in this circuit.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:
Joseph Alan Leonard appeals the 210-month sentence
imposed by the district court following his guilty plea,
pursuant to a written plea agreement, to deception in connection
with the sale of unregistered securities, in violation of 15
U.S.C.A. § 78j(b) (West Supp. 2013), 15 U.S.C.A. § 78ff (2009),
and 17 C.F.R. 240.10b-5 (2013). On appeal, Leonard’s counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting that there are no meritorious grounds for
appeal but questioning whether the sentence imposed by the
district court was substantively reasonable. The Government has
filed a motion to dismiss Leonard’s appeal based on the
appellate waiver provision in the plea agreement. Leonard’s
counsel opposes the Government’s motion as premature. Leonard
filed a pro se supplemental brief, in which he argues that the
sentence imposed was procedurally and substantively unreasonable
and that his appellate waiver was not knowing and voluntary
because the court failed to fully question his understanding of
the waiver provision and because counsel was ineffective for
failing to advise him of the consequences of the appellate
waiver. We grant in part the Government’s motion and dismiss
Leonard’s appeal of his sentence, and we deny in part the
Government’s motion and affirm Leonard’s conviction.
2
We review de novo a defendant’s waiver of appellate
rights. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005). “A defendant may waive his right to appeal if that
waiver is the result of a knowing and intelligent decision to
forgo the right to appeal.” United States v. Amaya-Portillo,
423 F.3d 427, 430 (4th Cir. 2005) (internal quotation marks
omitted); see United States v. General, 278 F.3d 389, 400 (4th
Cir. 2002) (providing standard). The district court’s failure
to specifically question the defendant’s understanding of the
waiver provision is relevant to, but not dispositive of, the
question of whether the waiver was knowing and intelligent.
General, 278 F.3d at 400. Additionally, while “a waiver of the
right to appeal may not be knowing and voluntary if tainted by
the advice of constitutionally ineffective trial counsel”
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005),
such ineffective assistance must “conclusively appear[] from the
record” for the claim to proceed on direct appeal. United
States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998).
Our review of the record leads us to conclude that the
present record does not conclusively show that counsel rendered
ineffective assistance, and that Leonard’s waiver of appellate
rights was knowing and voluntary. Thus, the waiver is valid and
enforceable.
3
We will enforce a valid waiver so long as “the issue
being appealed is within the scope of the waiver.” Blick, 408
F.3d at 168. We conclude that the sentencing issues raised in
both the Anders brief and the pro se supplemental brief fall
within the scope of the appellate waiver provision, because the
210-month sentence imposed by the district court was within the
Guidelines range established at the sentencing hearing.
Therefore, we grant in part the Government’s motion to dismiss
and dismiss this portion of the appeal.
The waiver provision does not, however, preclude our
review of Leonard’s conviction pursuant to Anders. We have
reviewed the plea colloquy for plain error and have found none.
See United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002)
(providing standard); see also United States v. Olano, 507 U.S.
725, 732 (1993) (detailing plain error standard).
In accordance with Anders, we have reviewed the entire
record and have found no unwaived and potentially meritorious
issues for review. We therefore grant Leonard’s pro se motion
to supplement the record and affirm Leonard’s conviction.
This court requires that counsel inform Leonard, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Leonard requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, counsel may move in this court for leave to
4
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Leonard. 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
5