United States v. George Gray

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4501
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEORGE E. GRAY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
District Judge. (5:10-cr-00146-FL-1)
Submitted: January 6, 2012 Decided: January 12, 2012
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part, by unpublished per curiam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. Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George E. Gray pled guilty in a Fed. R. Crim. P. 11
hearing to one count of being a convicted felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1) (2006). He was
sentenced to 87 months in prison. In accordance with Anders v.
California, 386 U.S. 738 (1967), Gray’s attorney has filed a
brief certifying that there are no meritorious issues for appeal
but questioning whether Gray was properly subject to an increase
in his base offense level pursuant to U.S. Sentencing Guidelines
Manual (“USSG”) § 2K2.1(a)(2) (2010). Gray has filed a pro se
supplemental brief in which he contends that the district court
and the Government committed numerous violations of the Federal
Rules of Criminal Procedure and his constitutional rights
leading up to his Rule 11 hearing. Gray also claims ineffective
assistance of counsel and alleges that the district court
improperly declined to grant him a downward departure due to
his medical conditions, pursuant to USSG § 5H1.4, p.s.
The Government has filed a motion to dismiss Gray’s
appeal of his sentence pursuant to the terms of his plea
agreement’s waiver of appellate rights. This waiver forfeits
Gray’s right to appeal his sentence, unless (1) it was in excess
of the advisory Guidelines range established at sentencing or
(2) his appeal is based on “ineffective assistance of counsel or
prosecutorial misconduct not known to [Gray] at the time of
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[his] guilty plea.” For the following reasons, we grant the
Government’s motion to dismiss Gray’s appeal of his sentence and
affirm Gray’s conviction.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006). United
States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). A valid
waiver will preclude appeal of issues that fall within the scope
of the waiver. United States v. Blick, 408 F.3d 162, 168
(4th Cir. 2005). Whether a defendant validly waived his right
to appeal is a question of law that we review de novo. Id.
“The validity of an appeal waiver depends on whether
the defendant knowingly and intelligently agreed to waive the
right to appeal.” Id. at 169. This determination, often made
based on the sufficiency of the plea colloquy and whether the
district court questioned the defendant about the appeal waiver,
ultimately turns on an evaluation of the totality of the
circumstances. Id. These circumstances include all of “the
particular facts and circumstances surrounding [the] case,
including the background, experience, and conduct of the
accused.” Id. (internal quotation marks omitted).
Here, the record indicates that the district court
substantially complied with Rule 11 when accepting Gray’s plea,
and specifically confirmed Gray’s understanding of the terms of
his appellate waiver. Given no indication in the record to the
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contrary, we find that Gray’s waiver of appellate rights is
valid and enforceable. Furthermore, because Gray’s 87-month
sentence falls within the Guidelines range established at his
sentencing, we hold that the sentencing issues Gray seeks to
raise on appeal fall squarely within the compass of his
appellate waiver. Accordingly, we grant the Government’s motion
to dismiss Gray’s appeal of his sentence.
We next consider Gray’s allegations of violations of
the Federal Rules of Criminal Procedure and his constitutional
rights prior to the entry of his guilty plea. A counseled
guilty plea waives all antecedent nonjurisdictional defects not
logically inconsistent with the establishment of guilt, unless
the defendant can show that his plea was not voluntary and
intelligent because the advice of counsel “was not within the
range of competence demanded of attorneys in criminal cases.”
Tollett v. Henderson, 411 U.S. 258, 266 (1973) (internal
quotation marks omitted); United States v. Moussaoui, 591 F.3d
263, 279 (4th Cir. 2010). Furthermore, defects in the
indictment, to which Gray alludes, are not jurisdictional.
United States v. Cotton, 535 U.S. 625, 631 (2002). Here, Gray’s
plea was counseled, knowing, and voluntary. Accordingly, save
his claim of ineffective assistance of counsel, Gray’s guilty
plea forecloses review of the pre-plea procedural and
constitutional violations alleged in his supplemental brief.
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We note, however, that Gray’s claim of ineffective
assistance of counsel is not suitable for review on direct
appeal. Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal unless the record
conclusively establishes counsel’s “objectively unreasonable
performance” and resulting prejudice. United States v. Benton,
523 F.3d 424, 435 (4th Cir. 2008). Instead, ineffective
assistance claims should be raised in a motion brought pursuant
to 28 U.S.C.A. § 2255 (West Supp. 2011) in order to promote
sufficient development of the record. United States v.
Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). Because the
record before us does not conclusively establish that Gray’s
counsel was ineffective, we decline to consider this claim on
direct appeal.
In accordance with Anders, we have reviewed the record
and have found no meritorious issues for appeal. We therefore
affirm Gray’s conviction and dismiss the appeal of his sentence.
This court requires that counsel inform Gray, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Gray requests that a petition be filed, but
counsel believes that such a petition would be frivolous,
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Gray. We dispense with oral argument because the
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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
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