United States v. Berry , 259 F. App'x 533 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4228
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GREGORY JAMES BERRY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:06-cr-00193-H)
Submitted: October 31, 2007 Decided: December 11, 2007
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Anne Margaret Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory James Berry pled guilty to distribution of
cocaine, in violation of 21 U.S.C. § 841(a)(1) (2000) (Count Two),
and possession of a firearm and ammunition by a convicted felon, in
violation of 18 U.S.C.A. §§ 922(g)(1), 924 (West 2000 & Supp. 2007)
(Count Three). He was sentenced within his advisory guideline
range to concurrent terms of fifty-seven months in prison.
On appeal, his attorney has filed an Anders* brief,
noting that, because Berry waived his right to appeal his sentence
in his plea agreement, there were no meritorious issues on appeal.
Nonetheless, the Anders brief questions whether Berry’s sentence
was greater than necessary to comply with the purposes of
sentencing under 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007).
Berry filed a pro se supplemental brief arguing that he was denied
effective assistance of counsel at sentencing. The Government has
moved to dismiss the appeal based on the appeal waiver. We grant
the motion in part and dismiss the appeal with regard to the issue
raised in Berry’s formal brief. After a review of the record under
Anders, we affirm Berry’s convictions and sentence.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C.A. § 3742 (West 2000 & Supp. 2007).
United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). Any
such waiver must be made by a knowing and intelligent decision to
forego the right to appeal. United States v. Broughton-Jones, 71
F.3d 1143, 1146 (4th Cir. 1995). Whether a defendant has
*
Anders v. California, 386 U.S. 738 (1967).
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effectively waived his right to appeal is an issue of law we review
de novo. United States v. Marin, 961 F.2d 493, 496 (4th Cir.
1992).
With regard to the issue raised in the Anders brief, we
grant the Government’s motion to dismiss. The district court’s
plea colloquy was thorough and substantially conformed to the
dictates of Fed. R. Crim. P. 11. Moreover, Berry does not
challenge the voluntariness of his waiver. Because Berry knowingly
and voluntarily entered into the plea agreement and the waiver was
reviewed at the plea hearing, the waiver is enforceable.
The waiver expressly precluded Berry from appealing any
sentence that was within or below the advisory guideline range.
Because the sentence imposed was within the advisory guideline
range, any challenge to the sentence imposed, including the issue
raised in Berry’s Anders brief, falls within the scope of that
waiver. Accordingly, we grant the Government’s motion to dismiss
Berry’s appeal as to the claim raised in the Anders brief.
The waiver’s enforceability does not completely dispose
of this appeal, however. Our interpretation of Berry’s plea
agreement is guided by contract law. United States v. McQueen, 108
F.3d 64, 66 (4th Cir. 1997). The appellate waiver expressly
permitted an appeal based upon ineffective assistance of counsel or
prosecutorial misconduct not known to Berry at the time of his
guilty plea. Therefore, the waiver provision does not foreclose
Berry’s right to appeal with respect to such issues, see United
States v. Craig, 985 F.2d 175, 178 (4th Cir. 1993), and we deny the
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Government’s motion as it relates to ineffective assistance or
prosecutorial misconduct.
In his pro se supplemental brief, Berry claims that
counsel provided ineffective assistance at sentencing. Claims of
ineffective assistance of counsel are generally not cognizable on
direct appeal. See United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997). Rather, to allow for adequate development of the
record, a defendant must bring such claims in a 28 U.S.C. § 2255
(2000) motion. See id.; United States v. Hoyle, 33 F.3d 415, 418
(4th Cir. 1994). An exception exists where the record conclusively
establishes ineffective assistance. United States v. Richardson,
195 F.3d 192, 198 (4th Cir. 1999); King, 119 F.3d at 295. Because
the record does not conclusively show that Berry’s counsel was
ineffective, we decline to consider Berry’s claim on direct appeal.
In accordance with Anders, we have reviewed the entire
record and found no viable claims of ineffective assistance of
counsel or prosecutorial misconduct that are clear from the record.
Accordingly, we affirm Berry’s convictions and, to the extent of
sentencing challenges outside the scope of the appellate waiver,
his sentence.
This court requires that counsel inform Berry, in
writing, of the right to petition the Supreme Court of the United
States for further review. If Berry 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
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copy thereof was served on Berry. 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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