United States v. Ernest Wright , 585 F. App'x 76 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4322
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERNEST JOSHON WRIGHT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
District Judge. (4:12-cr-00126-FL-1)
Submitted: October 21, 2014 Decided: October 23, 2014
Before SHEDD, DUNCAN, and FLOYD, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
John Keating Wiles, CHESHIRE, PARKER, SCHNEIDER & BRYAN, PLLC,
Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ernest Joshon Wright appeals his conviction and
sentence for conspiracy to distribute and possess with intent to
distribute cocaine, oxycodone, methadone, and marijuana, in
violation of 21 U.S.C. § 846 (2012), and possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(2012). Wright pled guilty pursuant to a written plea agreement
and was sentenced to seventy-eight months’ imprisonment. On
appeal, counsel for Wright has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), asserting that there are no
meritorious issues for appeal but questioning whether the
district court erred in finding at sentencing that Wright is a
“very dangerous person.” Wright has filed a pro se supplemental
brief alleging ineffective assistance of trial counsel and
prosecutorial misconduct. The government has moved to dismiss
the appeal as barred by the appellate waiver included in
Wright’s plea agreement.
We review de novo the validity of an appeal waiver.
United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert.
denied, 134 S. Ct. 126 (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
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waiver is valid if he agreed to it “knowingly and
intelligently.” 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 Wright
knowingly and voluntarily waived his right to appeal his
conviction and sentence, with certain specified exceptions.
Because the government seeks to enforce this valid waiver, we
grant the motion to dismiss in part and dismiss Wright’s appeal
as to the sentencing claim raised in the Anders brief, which is
clearly within the waiver’s scope.
We decline to consider Wright’s pro se claim of
ineffective assistance of counsel because the record does not
conclusively establish any deficiencies in counsel’s
representation. See United States v. Benton, 523 F.3d 424, 435
(4th Cir. 2008) (providing standard). Such challenges to
counsel’s performance are not cognizable on direct appeal and
must be pursued, if at all, in a proceeding for postconviction
relief. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th
Cir. 2010).
We have reviewed Wright’s remaining pro se claim and
the entire record in accordance with Anders and have found no
meritorious issues for appeal outside the scope of the waiver.
We therefore affirm the district court’s judgment as to all
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issues not encompassed by Wright’s broad waiver of appellate
rights.
This court requires that counsel inform Wright, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Wright 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 Wright. 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.
DISMISSED IN PART;
AFFIRMED IN PART
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