United States v. Antoine Rushin , 707 F. App'x 163 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4133
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTOINE GARFIELD RUSHIN,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia,
at Huntington. Robert C. Chambers, District Judge. (3:16-cr-00140-1)
Submitted: December 21, 2017 Decided: December 27, 2017
Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
John A. Carr, Charleston, West Virginia, for Appellant. Joseph Franklin Adams,
OFFICE OF THE UNITED STATES ATTORNEY, Huntington, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antoine Garfield Rushin appeals his conviction and 120-month sentence entered
pursuant to his guilty plea to aiding and abetting the possession with intent to distribute
heroin. Rushin pled guilty pursuant to a written plea agreement. On appeal, counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there
are no meritorious issues for appeal but seeking review of the district court’s application
of the career offender enhancement. Rushin filed a pro se supplemental brief which also
attacks the career offender enhancement. In addition, Rushin asserts that he received
ineffective assistance of counsel when his attorney failed to raise certain objections to his
career offender enhancement. The Government filed a motion to dismiss the appeal as
barred by the appellate waiver contained in Rushin’s plea agreement. We grant the
motion and dismiss the appeal.
We review de novo the validity of an appeal waiver. United States v. Copeland,
707 F.3d 522, 528 (4th Cir. 2013). We generally will enforce a waiver “if the record
establishes that the waiver is valid and that the issue being appealed is within the scope of
the waiver.” United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012) (internal
quotation marks omitted). A defendant’s waiver is valid if he “knowingly and
intelligently agreed to it.” United States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010).
Upon review of the plea agreement and the transcript of the Fed. R. Crim. P. 11
hearing, we conclude that Rushin knowingly and voluntarily waived his right to appeal
his conviction and sentence, with certain specified exceptions. Indeed, neither counsel
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nor Rushin disputes the validity of the plea or waiver. Thus, we conclude that the waiver
is valid and enforceable.
The claims raised by counsel and Rushin on appeal clearly fall within the scope of
the broad appellate waiver, with the exception of Rushin’s ineffective assistance of
counsel claim which was expressly reserved in the plea agreement. However, because
we conclude that ineffective assistance of counsel does not conclusively appear on the
record, see United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006), Rushin’s
ineffective assistance claim is not cognizable on direct appeal. United States v. Benton,
523 F.3d 424, 435 (4th Cir. 2008). Instead, this claim should be pursued, if at all, 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).
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious issues for appeal outside the scope of the waiver. We
therefore grant the Government’s motion to dismiss the appeal for the reasons stated
herein. This court requires that counsel inform Rushin, in writing, of the right to petition
the Supreme Court of the United States for further review. If Rushin requests that a
petition be filed, but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Rushin. We dispense with oral
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argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
DISMISSED
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