United States v. Sandra Elliott ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5188
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SANDRA ELLIOTT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:09-cr-00383-BO-1)
Submitted: June 22, 2012 Decided: July 2, 2012
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Ronnie M. Mitchell, THE MITCHELL LAW GROUP, Fayetteville, 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Unpublished opinions are not binding precedent in this circuit.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:
Sandra Elliott pled guilty, pursuant to a written plea
agreement, to health care fraud, and aiding and abetting, in
violation of 18 U.S.C.A. § 1347 (West 2006 & Supp. 2012) and 18
U.S.C. § 2 (2006). The district court sentenced Elliott to 120
months’ imprisonment. On appeal, Elliott argues that she was
denied effective of assistance of counsel at sentencing and that
her sentence was unreasonable.
The Government seeks to enforce the appellate waiver
provision of the plea agreement and has moved to dismiss
Elliott’s appeal. In response, Elliott asserts that the issues
she raises on appeal are outside the scope of the waiver.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). An appellate waiver
must be “the result of a knowing and intelligent decision to
forgo the right to appeal.” United States v. Broughton-Jones,
71 F.3d 1143, 1146 (4th Cir. 1995) (internal quotation marks and
citation omitted). We review de novo whether a defendant has
effectively waived her right to appeal. United States v. Marin,
961 F.2d 493, 496 (4th Cir. 1992).
In her plea agreement, Elliott agreed to waive her
right to appeal a within-Guidelines sentence, but reserved her
right to raise on appeal issues of ineffective assistance of
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counsel or prosecutorial misconduct. Elliott does not challenge
the validity of her waiver of appellate rights, but contends
that the issues she raises on appeal are outside the scope of
the waiver.
As the district court imposed a sentence within the
Guidelines range established at sentencing, Elliott’s challenge
to her sentence falls within the scope of the waiver and may not
be reviewed by this court. However, Elliott’s claim that
counsel was ineffective at sentencing is outside the scope of
the waiver and is subject to appellate review. Nevertheless,
claims of ineffective assistance of counsel should be raised in
a 28 U.S.C.A. § 2255 (West Supp. 2012) motion rather than on
direct appeal, unless the appellate record conclusively
demonstrates ineffective assistance. United States v. Benton,
523 F.3d 424, 435 (4th Cir. 2008). Because the record here does
not conclusively show that counsel was constitutionally
ineffective, we decline to review this claim on direct appeal.
Accordingly, we grant the Government’s motion to
dismiss in part and deny it in part. We dismiss the appeal of
Elliott’s sentence and otherwise affirm the judgment of the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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