United States v. Jones , 273 F. App'x 242 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4865
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES BERNARD JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:06-cr-00451-WLO-1)
Submitted: March 20, 2008 Decided: April 11, 2008
Before NIEMEYER and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Louis C. Allen, III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Lisa Blue
Boggs, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James B. Jones appeals his convictions and 150-month
sentence for possession with intent to distribute cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (2000), and possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(2000). Counsel for Jones filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he asserts that there are
no meritorious issues for appeal, but asks this court to review
whether Jones’ sentence is unreasonable in light of Kimbrough v.
United States, 128 S. Ct. 558 (2007), and the subsequent amendments
to the Sentencing Guidelines regarding offenses involving cocaine
base. In response, the Government filed a motion to dismiss based
upon the waiver of appellate rights in Jones’ plea agreement.
Jones filed a pro se supplemental brief in which he contended that
his counsel was ineffective in litigating his motion to suppress.*
Pursuant to a plea agreement, a defendant may waive his
appellate rights under 18 U.S.C. § 3742 (2000). United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). Whether a defendant has
waived his right to appeal is an issue of law subject to de novo
review. United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).
A waiver will preclude appeal of a specific issue if the record
establishes that the waiver is valid and that the issue is within
*
We grant Jones’ motion for an extension of time and deem his
pro se brief to be timely filed.
- 2 -
the scope of that waiver. United States v. Attar, 38 F.3d 727,
731-33 (4th Cir. 1994); cf. United States v. Blick, 408 F.3d 162,
171 (4th Cir. 2005) (refusing to enforce waiver for a “narrow class
of claims” that are not within the scope of the waiver).
In his Anders brief, Jones contends his sentence is
unreasonable in light of amendments to the Sentencing Guidelines
for offenses involving cocaine base and the Supreme Court’s ruling
in Kimbrough. However, these claims are squarely within the scope
of the appellate waiver, as Jones waived his right to appeal any
sentence below the statutory maximum “on any ground.” See Blick,
408 F.3d at 172-73. Accordingly, Jones’ claims in regard to his
sentence are barred by the appellate waiver.
In his pro se supplemental brief, Jones claims his trial
counsel was ineffective in litigating his motion to suppress. Such
claims of ineffective assistance of counsel are not barred by the
appellate waiver; however, these claims should be raised in a 28
U.S.C. § 2255 (2000) motion rather than on direct appeal unless the
record conclusively demonstrates ineffective assistance. See
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Such a
claim cannot be fairly adjudicated on direct appeal when the
appellant has not raised the issue before the district court and
there is no statement from counsel on the record. United States v.
DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). The existing record
does not conclusively support Jones’ claims regarding ineffective
- 3 -
assistance of counsel. Accordingly, these claims must be raised as
part of a § 2255 motion rather than on direct appeal.
Accordingly, we grant the Government’s motion to dismiss
as to Jones’ sentencing claims. As for Jones’ pro se claims that
he received ineffective assistance of counsel, we deny the
Government’s motion to dismiss as to those claims, but nonetheless
affirm Jones’ convictions. 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.
DISMISSED IN PART;
AFFIRMED IN PART
- 4 -