United States v. Gerald Rice ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4090
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GERALD JEROME RICE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:12-cr-00412-CCB-1)
Submitted: July 29, 2013 Decided: August 9, 2013
Before DAVIS, KEENAN, and FLOYD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Craig M. Sandberg, MUSLIN & SANDBERG, Chicago, Illinois, for
Appellant. John Walter Sippel, Jr., Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gerald Jerome Rice pled guilty to interference with
commerce by robbery and brandishing a firearm in furtherance of
a crime of violence. Rice’s written plea agreement included a
Federal Rule of Criminal Procedure 11(c)(1)(C) stipulated
sentence of 180 months’ imprisonment. The district court
imposed the stipulated sentence. Rice then filed this timely
appeal.
Rice’s attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), certifying that there
are no meritorious issues for appeal but asking this court to
consider whether Rice’s guilty plea was knowing and voluntary
and whether there was ineffective assistance of counsel. Rice
has filed a pro se brief seeking to withdraw his guilty plea.
The government has not filed a brief. * Because we find no
meritorious grounds for appeal, we affirm.
Because Rice did not move to withdraw his guilty plea
in the district court or raise any objections during the Rule 11
colloquy, the plea colloquy is reviewed for plain error. United
*
The government has not sought enforcement of the waiver of
appellate rights in the plea agreement. See United States v.
Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (recognizing that
the government may file a responsive brief raising the appellate
waiver issue or do nothing and allow this Court to perform the
Anders review).
2
States v. General, 278 F.3d 389, 393 (4th Cir. 2002). To
demonstrate plain error, a defendant must show that: (1) there
was an error; (2) the error was plain; and (3) the error
affected his “substantial rights.” United States v. Olano, 507
U.S. 725, 732 (1993). A defendant’s substantial rights are
affected if the court determines that the error “influenced the
defendant’s decision to plead guilty and impaired his ability to
evaluate with eyes open the direct attendant risks of accepting
criminal responsibility.” United States v. Goins, 51 F.3d 400,
402-03 (4th Cir. 1995) (internal quotation marks omitted); see
also United States v. Martinez, 277 F.3d 517, 532 (4th Cir.
2002) (holding that defendant must demonstrate he would not have
pled guilty but for the error).
Our thorough review of the record reveals that the
district court fully complied with Fed. R. Crim. P. 11 in
conducting the guilty plea colloquy. Thus we conclude that
Rice’s guilty plea was knowing and voluntary, and we find no
error in the district court’s acceptance of his guilty plea.
Additionally, we have reviewed Rice’s claim of ineffective
assistance of counsel and conclude that the record does not
conclusively establish ineffective assistance. Accordingly, the
ineffective assistance claim is not cognizable on direct appeal,
and must be brought in a motion under 28 U.S.C.A. § 2255 (West
3
Supp. 2013). See United States v. Baptiste, 596 F.3d 214,
216-17 n.1 (4th Cir. 2010).
Next, we conclude that we lack jurisdiction to review
Rice’s sentence. The federal statute governing appellate review
of a sentence, 18 U.S.C. § 3742(c) (2006), limits the
circumstances under which a defendant may appeal a sentence to
which he stipulated in a Rule 11(c)(1)(C) plea agreement to
claims that the sentence was imposed in violation of law or as a
result of an incorrect application of the sentencing guidelines.
United States v. Sanchez, 146 F.3d 796, 797 & n.1 (10th Cir.
1998); United States v. Littlefield, 105 F.3d 527, 527-28 (9th
Cir. 1997). Here, Rice’s sentence did not exceed the applicable
statutory maximum, and was the precise sentence that he had
bargained for with the government. Thus, our review of his
sentence is precluded by § 3742(c).
Finally, we have considered the remaining issues
raised in Rice’s pro se brief and conclude that they are without
merit. In accordance with Anders, we have reviewed the record
in this case and found no meritorious issues for appeal. We
therefore affirm Rice’s conviction and dismiss his appeal to the
extent he challenges his sentence. Counsel’s motion to withdraw
from representation is denied. This Court requires that counsel
inform Rice in writing of the right to petition the Supreme
Court of the United States for further review. If Rice requests
4
that a petition be filed, but counsel believes that such a
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 thereof was served on Rice. Finally, 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