United States v. Mary McCulley ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 21 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-30099
Plaintiff - Appellee, D.C. No. 2:13-cr-00007-SEH-1
v.
MEMORANDUM*
MARY ANN MCCULLEY,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted April 6, 2015**
Seattle, Washington
Before: HAWKINS, RAWLINSON, and CALLAHAN, Circuit Judges.
Appellant Mary Ann McCulley (McCulley) appeals her conviction and
sentence following her guilty plea to one count of false impersonation of a federal
officer or employee in violation of 18 U.S.C. § 912. McCulley contends that the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
district court failed to adequately consider her oral motion to withdraw her guilty
plea due to newly discovered evidence; the superseding information failed to
sufficiently allege that McCulley violated 18 U.S.C. § 912; her conviction violated
her rights under the First and Fourteenth Amendments; and reversal of her
conviction and sentence is warranted due to ineffective assistance of counsel.
McCulley also challenges the district court’s above guidelines sentence. We
dismiss McCulley’s appeal.
1. McCulley’s contention that the district court failed to adequately consider
her motion to withdraw her guilty plea is without factual basis because no oral or
written motion was clearly made prior to sentencing. See United States v. Dewey,
599 F.3d 1010, 1017 (9th Cir. 2010).
2. McCulley waived any challenge to the sufficiency of the superseding
information and the constitutionality of her conviction by entering an
unconditional guilty plea. See United States v. Brizan, 709 F.3d 864, 866-67 (9th
Cir. 2013) (“An unconditional guilty plea waives all non-jurisdictional defenses
and cures all antecedent constitutional defects, allowing only an attack on the
voluntary and intelligent character of the plea. . . .”) (citations omitted).
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3. We dismiss McCulley’s challenge to her sentence because McCulley validly
waived any appeal of her sentence pursuant to her plea agreement. See United
States v. Mendez-Gonzalez, 697 F.3d 1101, 1103-04 (9th Cir. 2012).
4. We decline to review McCulley’s ineffective assistance of counsel claim
because “[s]uch claims are generally inappropriate on direct appeal” when the
record is undeveloped and the ineffectiveness of counsel is not apparent. United
States v. Steele, 733 F.3d 894, 897 (9th Cir. 2013) (citation and internal quotation
marks omitted).
DISMISSED.
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