United States v. Charles Locklear, Jr. ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4332
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES RONALD LOCKLEAR, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:11-cr-00067-F-1)
Submitted: January 28, 2013 Decided: March 14, 2013
Before MOTZ, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George E. Crump, III, Rockingham, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Locklear, Jr., pled guilty, pursuant to a
written plea agreement, to possession of a firearm and
ammunition by a convicted felon, 18 U.S.C. § 922(g)(1) (2006),
and was sentenced to 195 months’ imprisonment. On appeal, his
counsel raises two arguments: (1) the district court erred in
denying his motion to suppress evidence, and (2) his guilty plea
was unknowing and involuntary and, therefore, the district court
erred in denying his motion to withdraw his guilty plea.
Locklear has also filed a pro se supplemental brief raising
additional issues. For the reasons that follow, we affirm.
On the morning of October 2, 2010, officers from
Robeson County, North Carolina, responded to a 911 report of a
shooting near Locklear’s residence and identified Locklear as
one of those involved in the shooting incident. Deputy Dwayne
Leggett arrived at Locklear’s residence to find Locklear sitting
on his front porch, asleep, with a black .22 caliber rifle
laying across his lap. After confirming that Locklear was a
convicted felon, Leggett seized the firearm and placed Locklear
under arrest.
Locklear filed a motion to suppress, which was denied.
The district court found that Leggett’s observation of the rifle
did not amount to a search and that his brief investigative
detention of Locklear was reasonable. The court concluded that
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Locklear “did not manifest a reasonable expectation of privacy
when he visibly possessed a gun while sitting on the front porch
of his house.”
Locklear subsequently pled guilty, pursuant to a
written plea agreement, in which he agreed:
c. To waive knowingly and expressly the right to
appeal whatever sentence is imposed on any ground,
including any appeal pursuant to 18 U.S.C. § 3742,
reserving only the right to appeal from a sentence in
excess of the advisory Guidelines range that is
established at sentencing. . .
The plea agreement was unconditional; it did not preserve
Locklear’s right to appeal the denial of his suppression motion.
Approximately two months later, Locklear moved to withdraw his
plea. The district court denied the motion.
At sentencing, the district court determined that
Locklear’s adjusted offense level was 30 and his criminal
history category was VI, resulting in an advisory Guidelines
range of 168 to 210 months’ imprisonment. However, because
Locklear qualified as an armed career criminal, 18 U.S.C.
§ 924(e) (2006), he was subject to a mandatory minimum of 180
months; therefore, his Guidelines range became 180 to 210
months’ imprisonment. The court denied the Government’s motion
for an upward departure, as well as Locklear’s motion for a
downward departure, and imposed a within-Guidelines sentence of
195 months’ imprisonment. Locklear noted a timely appeal.
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Locklear first challenges the validity of his guilty
plea and the district court’s denial of his motion to withdraw
the plea. After a review of the record, we conclude that the
district court fully complied with the mandates of Fed. R. Crim.
P. 11 in accepting Locklear’s guilty plea. During the plea
hearing, the district court informed Locklear of the nature of
the charges and maximum penalties he faced, all of the rights he
was giving up by pleading guilty, that there was a factual basis
for the plea, and ensured that Locklear was competent and
entering his plea voluntarily. The court also specifically
questioned Locklear with respect to his understanding of the
appellate waiver provision. Nevertheless, Locklear asserted, in
his motion to withdraw his guilty plea, that he erroneously
believed he had reserved the right to appeal the denial of his
suppression motion.
The district court’s denial of a motion to withdraw a
guilty plea is reviewed for abuse of discretion. United States
v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). After reviewing
the factors used to consider whether a defendant has shown a
fair and just reason for withdrawing his guilty plea, we
conclude that the district court did not abuse its discretion in
denying Locklear’s motion. See United States v. Moore, 931 F.2d
245, 248 (4th Cir. 1991).
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Further, an unconditional guilty plea generally waives
all antecedent, nonjurisdictional issues. Tollett v. Henderson,
411 U.S. 258, 266-67 (1973); Fields v. Att’y Gen., 956 F.2d
1290, 1294-95 (4th Cir. 1992); see United States v. White, 366
F.3d 291, 299 n.6 (4th Cir. 2004). The right to challenge on
appeal a Fourth Amendment issue raised in a motion to suppress
is a nonjurisdictional defense and thus is forfeited by an
unconditional guilty plea. Haring v. Prosise, 462 U.S. 306, 320
(1983). Therefore, having concluded that Locklear’s
unconditional guilty plea was valid, we find that he has waived
his right to appeal the denial of his motion to suppress.
Locklear has filed a motion to submit a supplemental
pro se brief in which he seeks to raise three additional
challenges to his conviction and sentence. Although we grant
the motion to file the supplemental brief, we find the claims
raised therein without merit. First, Locklear’s ineffective
assistance claims are not cognizable on direct appeal. Unless
an attorney’s ineffectiveness is conclusively apparent 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.A. § 2255(West Supp. 2012), in order to promote sufficient development of
the record. United States v. Baptiste, 596 F.3d 214, 216 n.1
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(4th Cir. 2010). Because there is no conclusive evidence of
ineffective assistance of counsel on the face of the record, we
find that these claims should be raised, if at all, in a § 2255
motion.
Locklear’s claims regarding his sentence are
foreclosed by the waiver in his plea agreement. A defendant
may, in a valid plea agreement, waive the right to appeal under
18 U.S.C. § 3742 (2006). United States v. Manigan, 592 F.3d
621, 627 (4th Cir. 2010). We review the validity of an
appellate waiver de novo and will enforce the waiver if it is
valid and the issue appealed is within the scope thereof.
United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). An
appeal waiver is valid if the defendant knowingly and
intelligently agreed to the waiver. Id. at 169. To determine
whether a waiver is knowing and intelligent, we examine “the
background, experience and conduct of the accused.” United
States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)
(internal quotation marks omitted). Generally, if a district
court fully questions a defendant regarding the waiver of
appellate rights during the Rule 11 colloquy and the record
indicates that the defendant understood the full significance of
the waiver and was not denied effective assistance of counsel,
the waiver is valid. United States v. Johnson, 410 F.3d 137,
151 (4th Cir. 2005). Our review of the record leads us to
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conclude that Locklear knowingly and voluntarily waived the
right to appeal his sentence and that the issue he seeks to
raise regarding application of the Armed Career Criminal
enhancement is within the scope of the waiver. Finally,
Locklear’s additional arguments challenging the denial of his
motion to suppress evidence are waived. See Tollett 411 U.S. at
267.
Accordingly, we affirm Locklear’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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