United States v. Sinclair ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4906
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ORVILLE SINCLAIR, a/k/a George Saintdane, a/k/a Orville
George Saintdan Sinclair,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:08-cr-00273-RBH-1)
Submitted: December 29, 2010 Decided: January 28, 2011
Before MOTZ, GREGORY, and KEENAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
John M. Ervin, III, Darlington, South Carolina, for Appellant.
Carrie Ann Fisher, Assistant United States Attorney, Florence,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Orville Sinclair pled
guilty to possession of a firearm and ammunition by an unlawful
user of a controlled substance, in violation of 18 U.S.C.
§§ 922(g)(3), 924(a)(2), and 924(e) (2006). The parties
stipulated in the plea agreement to a twenty-month sentence.
See Fed. R. Crim. P. 11(c)(1)(C). The district court accepted
the plea agreement and, under that agreement, was bound to
sentence Sinclair to twenty months, which it did.
On appeal, Sinclair’s counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
stating that, in his view, there are no meritorious grounds for
appeal but questioning (1) the validity of Sinclair’s guilty
plea in light of the court’s failure to address Sinclair’s
immigration status at his plea hearing and (2) whether Sinclair
was denied effective assistance of counsel in the district
court. Sinclair filed a pro se supplemental brief asserting
several claims of ineffective assistance of counsel. We affirm
in part and dismiss in part.
Turning to the validity of Sinclair’s guilty plea,
where, as here, the defendant did not move to withdraw his
guilty plea in the district court, we review the adequacy of the
plea for plain error. United States v. Martinez, 277 F.3d 517,
525 (4th Cir. 2002). Our review of the record on appeal leads
2
us to conclude that the district court fully complied with the
mandates of Rule 11 in accepting Sinclair’s plea. Moreover, the
district court ensured that Sinclair’s guilty plea was knowing
and voluntary and was supported by a sufficient factual basis.
See United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th
Cir. 1991).
Sinclair contends that his plea was invalid because
the district court did not inquire into the impact his plea
agreement would have on his immigration status. Assuming
without deciding that the district court had such an obligation,
we note that Sinclair’s substantial rights were unaffected
because he was an illegal alien ∗ and therefore his guilty plea
had no bearing on his deportability. Cf. Padilla v. Kentucky,
130 S. Ct. 1473, 1486 (2010) (holding that trial counsel had a
duty to inform client who is a resident legal alien whether his
guilty plea “carries a risk of deportation”).
Sinclair contends that he was denied effective
assistance of counsel in the district court. Claims of
ineffective assistance of counsel generally are not cognizable
on direct appeal. United States v. King, 119 F.3d 290, 295 (4th
∗
On appeal, counsel contends that Sinclair is “alleged” to
be an illegal alien. Sinclair did not object in the district
court to the Government’s characterization of him as an illegal
alien and there is no evidence to the contrary in the record
before us.
3
Cir. 1997). Rather, to allow for adequate development of the
record, a defendant must bring such claims in a 28 U.S.C.A.
§ 2255 (West Supp. 2010) motion, unless 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
Sinclair’s counsel was ineffective, we decline to consider these
issues on direct appeal.
With regard to Sinclair’s sentence, we do not have
jurisdiction over this portion of the appeal. Under 18 U.S.C.
§ 3742(c) (2006), a defendant’s appeal of a sentence to which he
stipulated in a Rule 11(c)(1)(C) plea agreement is limited to
circumstances where “his sentence was imposed in violation of
law [or] was imposed as a result of an incorrect application of
the sentencing guidelines.” United States v. Sanchez, 146 F.3d
796, 797 (10th Cir. 1998); United States v. Littlefield, 105
F.3d 527, 527-28 (9th Cir. 1997).
Here, Sinclair’s sentence was not imposed in violation
of law. His twenty-month sentence is well within the maximum
sentence of ten years of imprisonment provided by 18 U.S.C.
§ 924(a)(2) (2006). Additionally, his sentence is not the
result of an incorrect application of the guidelines. A
sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement
is contractual and not based upon the guidelines. United States
4
v. Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005); Littlefield,
105 F.3d at 528. Because § 3742(c) bars review of a sentence
imposed pursuant to a Rule 11(c)(1)(C) plea agreement and none
of the exceptions apply, we dismiss the appeal of Sinclair’s
sentence.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Sinclair’s conviction and dismiss
the appeal of his sentence. This court requires that counsel
inform his client, in writing, of the 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 presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED IN PART;
DISMISSED IN PART
5