United States v. March ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4421
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GONZALES MARCH, a/k/a Gun, a/k/a Gon,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:08-cr-00590-CMC-6)
Submitted: July 29, 2010 Decided: August 20, 2010
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jessica Salvini, SALVINI & BENNETT, LLC, Greenville, South
Carolina, for Appellant. James Chris Leventis, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Mark C. Moore, Stanley Duane
Ragsdale, Assistant United States Attorneys, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gonzales March appeals his conviction and 144 month
sentence for conspiracy to distribute and possess with intent to
distribute cocaine and marijuana, in violation of 21 U.S.C.
§ 841 (2006) (Count 1) and the use of a telephone to facilitate
a drug conspiracy, in violation of 21 U.S.C. § 843(b) (2006)
(Count 35). Appellate counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), contending that there
are no meritorious issues on appeal, but questioning whether
March’s appeal is barred by his plea waiver, and whether March’s
sentence is reasonable. March has filed an informal brief,
questioning the validity of his guilty plea and the district
court’s application of the career offender enhancement, and
asserting that his original attorney was ineffective in failing
to request an exception to March’s plea waiver due to the
pendency of the Supreme Court’s decision in Chambers v. United
States, 129 S. Ct. 687 (2009), and his later attorney was
ineffective in advising March to withdraw his objection to the
application of the career offender enhancement, in light of our
subsequent decision in United States v. Rivers, 595 F.3d 558(4th Cir. 2010). The Government declined to file a brief. We
affirm.
Because March did not move in the district court to
withdraw his guilty plea, we review March’s Rule 11 hearing for
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plain error. United States v. Martinez, 277 F.3d 517, 525 (4th
Cir. 2002). “To establish plain error, [March] must show that
an error occurred, that the error was plain, and that the error
affected his substantial rights.” United States v. Muhammad,
478 F.3d 247, 249 (4th Cir. 2007). Even if March satisfies
these requirements, “correction of the error remains within the
court’s discretion, which [the court] should not exercise unless
the error seriously affects the fairness, integrity[,] or public
reputation of judicial proceedings.” Id. (internal quotation
marks and citation omitted). After reviewing the record, we
find that the district court complied with the mandates of Fed
R. Crim. P. 11; therefore, March’s guilty plea was knowingly and
voluntarily made.
Additionally, both March and his counsel challenge
whether March’s appeal is barred by the plea waiver contained in
March’s plea agreement. Where the government seeks to enforce
an appeal waiver and the appellant does not contend that the
government is in breach of its plea agreement, a waiver will be
enforced if the record shows the waiver is valid and the
challenged issue falls within the scope of the waiver. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). However, if
the government declines to file a motion or brief raising the
waiver issue, we will perform the required Anders review.
United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).
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Because the Government declined to raise the issue of the appeal
waiver, we will perform the required Anders review, and need not
consider the validity of March’s appeal waiver.
Next, March’s counsel questions whether March’s 144
month sentence is substantively reasonable. Additionally, in
his pro se brief, March contends that, because failure to stop
for a blue light is not a crime of violence, the district court
committed procedural error in applying the career offender
enhancement.
“Regardless of whether the sentence imposed is inside
or outside the [g]uidelines range, the appellate court must
review the sentence under an abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 51 (2007). Appellate courts
are charged with reviewing sentences for both procedural and
substantive reasonableness. Id.In determining procedural reasonableness, we first
assess whether the district court properly calculated the
defendant’s advisory guidelines range. Gall, 552 U.S. at 49-50.
We then determine whether the district court failed to consider
the 18 U.S.C. § 3553(a) (2006) factors and any arguments
presented by the parties, treated the guidelines as mandatory,
selected a sentence based on “clearly erroneous facts,” or
failed to sufficiently explain the selected sentence. Id. at
51; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
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Finally, we review the substantive reasonableness of the
sentence, “taking into account the ‘totality of the
circumstances, including the extent of any variance from the
[g]uidelines range.’” Pauley, 511 F.3d at 473 (quoting Gall,
552 U.S. at 51).
Generally, unpreserved errors in sentencing are
reviewed for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). However, a
defendant may waive appellate review of sentencing error if he
raises and then knowingly withdraws an objection to the error
before the district court. See United States v. Horsfall, 552
F.3d 1275, 1283 (11th Cir. 2008) (finding that defendant’s
withdrawal of objection to sentence enhancement precluded
appellate review of enhancement); United States v. Rodriguez,
311 F.3d 435, 437 (1st Cir. 2002) (“[A] party who identifies an
issue, and then explicitly withdraws it, has waived the
issue.”). See also United States v. Chapman, 209 F. App’x 253,
268 n.4 (4th Cir. 2006) (No. 04-5010) (noting that “withdrawal
of [an] objection amounts to a waiver of any complaint . . . ,
precluding us from considering the issue even under plain error
review”) (argued but unpublished). An appellant is precluded
from challenging a waived issue on appeal. See Rodriguez, 311
F.3d at 437. Such a waiver is distinguishable “from a situation
in which a party fails to make a timely assertion of a right –
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what courts typically call a ‘forfeiture,’” id. (quoting Olano,
507 U.S. at 733), which, as noted above, may be reviewed on
appeal for plain error. See Olano, 507 U.S. at 733-34.
Here, the record reflects that March initially
objected to the probation officer’s finding that he qualified as
a career offender, contending that his conviction for failure to
stop for a blue light, in violation of South Carolina Code § 56-
5-750 (2006), was not a crime of violence. During sentencing,
in exchange for the Government’s agreement to withdraw its 21
U.S.C. § 851 (2006) information, March withdrew his motion for
downward departure and objection to the application of the
career offender enhancement. Therefore, it is clear that March
has waived this issue, and we are precluded from considering it
on appeal. Reviewing the remainder of March’s sentence, we find
that it is both procedurally and substantively reasonable.
In his pro se informal supplemental brief, March also
asserts that the two attorneys who represented him in the
district court each were ineffective. Claims of ineffective
assistance of counsel generally are 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 ordinarily bring his claim in a 28 U.S.C.A.
§ 2255 (West Supp. 2010) motion. See id.; United States v.
Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception to this
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general rule exists when 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 establish ineffectiveness of either
attorney who represented March, we decline to consider this
claim on direct appeal.
In accordance with Anders, we have reviewed the
entirety of the record and find no meritorious issues on appeal.
Accordingly, we affirm the judgment of the district court. This
court requires that counsel inform her client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client 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 the client. We dispense with oral
argument because the facts and legal contentions are adequately
expressed in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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