United States v. Jarrku Bennett

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4980
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JARRKU NATU BENNETT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. W. Earl Britt,
Senior District Judge. (4:11-cr-00008-BR-1)
Submitted: June 19, 2012 Decided: September 24, 2012
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville,
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Unpublished opinions are not binding precedent in this circuit.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:
Pursuant to a written plea agreement, Jarrku Natu
Bennett pled guilty to a single count of distribution of a
quantity of crack cocaine, violating 21 U.S.C. § 841(a)(1)
(2006), and was sentenced to thirty-three months’ imprisonment.
Counsel for Bennett has now submitted a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), stating that he has
divined no meritorious grounds for appeal but inquiring whether
Bennett was deprived of effective assistance of counsel at his
sentencing and whether the court erred in denying Bennett a
downward adjustment for acceptance of responsibility under U.S.
Sentencing Guidelines Manual (“USSG”) § 3E1.1. The Government
has moved to dismiss the appeal of Bennett’s sentence based on
his waiver of appellate rights. Despite receiving notice of his
right to file a pro se supplemental brief, Bennett has declined
to do so. We have reviewed the record, and we dismiss in part
and affirm in part.
A criminal defendant may, in a valid plea agreement,
waive the right to appeal under 18 U.S.C. § 3742 (2006). United
States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). We review
the validity of an appellate waiver de novo and will enforce the
waiver if it is valid and the issue appealed is within the scope
of that waiver. United States v. Blick, 408 F.3d 162, 168 (4th
2
Cir. 2005). Generally, if the district court fully questions a
defendant regarding the waiver of his right to appeal during the
plea colloquy performed in accordance with Fed. R. Crim. P. 11,
the waiver is both valid and enforceable. Manigan, 592 F.3d at
627; United States v. Johnson, 410 F.3d 137, 151 (4th Cir.
2005). Our review of the record convinces us that Bennett
knowingly and voluntarily waived the right to appeal his
sentence. We therefore grant the Government’s motion to dismiss
as to all sentencing issues.
To the extent that Bennett claims that he was deprived
of effective assistance of counsel, our review of the record
convinces us that it does not conclusively show that Bennett’s
counsel was unconstitutionally ineffective. See United
States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006) (noting
ineffective assistance claims may be addressed on direct appeal
“only if the lawyer’s ineffectiveness conclusively appears from
the record”). Thus, in order to allow for the adequate
development of the record, Bennett’s claim would be properly
brought in a 28 U.S.C.A. § 2255 (West Supp. 2012) motion rather
than on direct appeal.
As to any remaining issues, we have reviewed the
entire record in accordance with Anders and have found no non-
waivable meritorious issues. We therefore affirm the district
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court’s judgment as to all issues not encompassed by Bennett’s
valid waiver of appellate rights.
This court requires that counsel inform Bennett, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Bennett 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 Bennett.
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.
DISMISSED IN PART;
AFFIRMED IN PART
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