United States v. Jenki ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4139
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID BRUCE JENKINS, a/k/a lquid_dragon,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:08-cr-00017-LHT-1)
Submitted: February 26, 2010 Decided: March 16, 2010
Before NIEMEYER, SHEDD, and DAVIS, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Lee Ann Anderson McCall, Washington, D.C., for Appellant.
Edward R. Ryan, Acting United States Attorney, Adam Morris,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Bruce Jenkins pled guilty to coercion and
enticement regarding his attempts to have sexual contact with a
minor in violation of 18 U.S.C. § 2422(b) (2006). In his guilty
plea, Jenkins waived his right to appeal except for claims of
ineffective assistance of counsel, prosecutorial misconduct, or
the reasonableness of any upward variance from the Sentencing
Guidelines range. (JA 10). Jenkins was sentenced to 262 months
of imprisonment. On appeal, Jenkins raises the following
issues: (1) whether the Government breached his plea agreement
by advocating for an eight-level sentence enhancement, under
U.S. Sentencing Guidelines Manual (“USSG”) § 2G1.3(b)(5) (2008);
(2) whether trial counsel was ineffective for failing to object
to the eight-level enhancement; and (3) whether the eight-level
enhancement was erroneous because the victim was not actually
under the age of twelve, as the person involved was actually a
police officer pretending to be an eleven-year-old girl. For
the reasons that follow, we dismiss in part and affirm in part.
First, we find no breach of the plea agreement.
United States v. McQueen, 108 F.3d 64, 65-66 (4th Cir. 1997)
(providing plain error review standard). Thus, as argued by the
Government, Jenkins has waived his right to challenge his eight-
level sentencing enhancement. We therefore dismiss the appeal
of Jenkins’ third issue. We find Jenkins’ remaining issue —
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ineffective assistance of counsel — not cognizable in this
appeal. United States v. James, 337 F.3d 387, 391 (4th Cir.
2003) (providing standard). Rather, this claim should be
brought, if at all, in a subsequent 28 U.S.C.A. § 2255 (West
Supp. 2009) motion. United States v. Gastiaburo, 16 F.3d 582,
590 (4th Cir. 1994). Accordingly, we deny relief on Jenkins’
second issue and affirm his 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.
DISMISSED IN PART;
AFFIRMED IN PART
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