United States v. James Lumsden ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4429
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES RICHARD LUMSDEN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:14-cr-00152-RJC-3)
Submitted: May 31, 2016 Decided: June 14, 2016
Before GREGORY, WYNN, and FLOYD, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for
Appellant. Jill Westmoreland Rose, United States Attorney,
Anthony J. Enright, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Richard Lumsden appeals his convictions and 93-month
sentence following his guilty plea pursuant to a plea agreement
to money laundering, a violation of 18 U.S.C. § 1956(a)(1)
(2012), and possession of a firearm in furtherance of drug
trafficking, a violation of 18 U.S.C. § 924(c) (2012). Lumsden
challenges his convictions and sentence, alleging ineffective
assistance of counsel and prosecutorial misconduct. Lumsden
also claims that the district court erred in denying his request
for new counsel, which rendered his waiver of appellate rights
involuntary, and denying his motion for a downward variance at
sentencing. The Government argues that Lumsden’s appeal is — at
least in part — foreclosed by the waiver of appeal rights in his
plea agreement and that Lumsden’s remaining claims are without
merit. For the following reasons, we affirm in part and dismiss
in part.
A defendant may, in a valid plea agreement, waive the right
to appeal under 18 U.S.C. § 3742 (2012). United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). Generally, “if the
record establishes that the waiver is valid and that the issue
being appealed is within the scope of the waiver,” it is
enforceable. United States v. Thornsbury, 670 F.3d 532, 537
(4th Cir. 2012) (internal quotation marks omitted). A
defendant’s waiver is valid if he agreed to it “knowingly and
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intelligently.” United States v. Manigan, 592 F.3d 621, 627
(4th Cir. 2010). “Although the validity of an appeal waiver
often depends on the adequacy of the plea colloquy, the issue is
ultimately evaluated by reference to the totality of the
circumstances,” United States v. Davis, 689 F.3d 349, 355 (4th
Cir. 2012) (internal quotation marks omitted), such as “the
experience and conduct of the accused, as well as the accused’s
educational background and familiarity with the terms of the
plea agreement.” Thornsbury, 670 F.3d at 528.
In his plea agreement, Lumsden agreed to waive his right to
appeal but reserved his right to raise on appeal issues of
ineffective assistance of counsel and prosecutorial misconduct.
Lumsden challenges the validity of the waiver, arguing that the
district court’s denial of his request to substitute counsel
rendered the waiver involuntary. Our review of the record
convinces us that the district court did not abuse its
discretion in denying the request for new counsel, see United
States v. Horton, 693 F.3d 463, 466-67 (4th Cir. 2012)
(providing standard of review and factors courts consider in
reviewing motions to substitute counsel), and that Lumsden
knowingly and voluntarily waived his appellate rights. Because
Lumsden’s challenge to his sentence falls squarely within the
scope of that waiver, we dismiss the appeal of the sentence.
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Although Lumsden’s sentencing claim falls within the scope
of the waiver, Lumsden’s ineffective assistance of counsel and
prosecutorial misconduct claims fall outside the scope of the
waiver and are subject to appellate review. Claims of
ineffective assistance of counsel generally are not cognizable
on direct appeal, unless an attorney’s ineffectiveness
conclusively appears on the face of the record. 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. § 2255 (2012), in order to permit sufficient development
of the record. United States v. Baptiste, 596 F.3d 214, 216 n.1
(4th Cir. 2010). Because the record does not conclusively
establish ineffective assistance of counsel, we conclude that
these claims should be raised, if at all, in a § 2255 motion,
and, therefore, we decline to review these claims on direct
appeal.
Finally, Lumsden argues that the Government engaged in
prosecutorial misconduct. Because Lumsden failed to allege
prosecutorial misconduct before the district court, we review
for plain error. United States v. Alerre, 430 F.3d 681, 689
(4th Cir. 2005) (applying plain error standard to prosecutorial
misconduct claim); see United States v. Obey, 790 F.3d 545, 547
(4th Cir. 2015) (setting forth plain error standard). We
conclude that Lumsden cannot show error, let alone plain error.
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To establish prosecutorial misconduct, Lumsden “must show (1)
that the prosecutor’s remarks or conduct were improper and (2)
that such remarks or conduct prejudicially affected his
substantial rights so as to deprive him of a fair trial.”
United States v. Caro, 597 F.3d 608, 624-25 (4th Cir. 2010)
(internal quotation marks omitted). Our review discloses that
Lumsden’s claim is meritless, as he fails to show either
misconduct or prejudice.
Accordingly, we affirm Lumsden’s convictions and dismiss
the appeal of the sentence. 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 AND
DISMISSED IN PART
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