United States v. Moses

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4588
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER QUINN MOSES,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Lacy H. Thornburg,
District Judge. (CR-01-151)
Submitted: March 10, 2004 Decided: April 14, 2004
Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Vaughan S. Winborne, Jr., Raleigh, North Carolina, for Appellant.
Robert James Conrad, Jr., United States Attorney, Kenneth Michel
Smith, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Christopher Quinn Moses appeals his convictions and
sentence following his guilty plea to four counts of armed bank
robbery, in violation of 18 U.S.C. § 2113(d) (2000), and using or
brandishing a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c) (2000). Moses’s
attorney has filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967). Although counsel states there are no
meritorious issues for appeal, he challenges the district court’s
calculation of Moses’s criminal history category, its application
of various sentencing enhancements, and whether counsel rendered
effective assistance. The Government elected not to file a
responding brief and, although informed of his right to do so,
Moses did not file a pro se supplemental brief. In accordance with
Anders, we have considered the brief and examined the entire record
for meritorious issues. Finding no error, we affirm.
In a written plea agreement, Moses waived his right to
appeal his conviction and sentence either directly or in post-
conviction proceedings, with the exception of claims of
prosecutorial misconduct and ineffective assistance of counsel. It
is well-settled that a defendant may, in a valid plea agreement,
waive the right to appeal under 18 U.S.C. § 3742, as long as it is
the result of a knowing and intelligent decision to forego the
right to appeal. United States v. Wessells, 936 F.2d 165 (4th Cir.
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1991). Because Moses’s waiver was knowing and intelligent, he may
not appeal the district court’s calculation of his criminal history
category or its application of various sentence enhancements.
While Moses did not waive the right to appeal on the
basis of ineffective assistance of counsel, such claims generally
should be asserted on collateral review, not on direct appeal,
unless the record conclusively shows ineffective assistance.
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Moses’s
present counsel had not yet been appointed to represent him at the
time of the alleged ineffective assistance. Moreover, even if she
is deemed to have been representing Moses at the time she rendered
advice that he now asserts was defective, he cannot make the
requisite showing under Strickland v. Washington, 466 U.S. 668,
687-88 (1984), that he was prejudiced as a result of counsel’s
alleged deficient performance. Thus, because the record does not
conclusively show ineffective assistance, we dismiss this claim
without prejudice.
In accordance with Anders, we have reviewed the entire
record in this case, including the Fed. R. Crim. P. 11 and
sentencing transcripts, and have found no meritorious issues for
appeal. We therefore affirm Moses’s convictions and sentence.
This court requires that counsel inform his 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,
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but counsel believes that such a petition would be frivolous, then
counsel may move in this court to withdraw from representation at
that time. Counsel’s motion must state that a copy thereof was
served on Moses.
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
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