United States v. Lyons

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4058
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN PATRICK LYONS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (CR-04-26)
Submitted: September 28, 2005 Decided: October 26, 2005
Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Vaughan S. Winborne, Jr., Raleigh, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Thomas R. Ascik, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kevin Patrick Lyons appeals the district court’s judgment
entered pursuant to his guilty plea to conspiracy to possess with
intent to distribute methamphetamine and marijuana, in violation of
21 U.S.C.A. §§ 841, 846 (West 1999 & Supp. 2005). Lyons’s attorney
has filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), arguing issues that Lyons raised in his pro se notice
of appeal: (1) the court erred in finding Lyons subject to sentence
enhancement under 21 U.S.C. § 851 (2000); (2) the court erred in
sentencing Lyons inconsistently with stipulations in the plea
agreement; and (3) counsel was ineffective in failing to challenge
the § 851 enhancement. In a supplemental brief, counsel for Lyons
asserts that, despite our recent decision in United States v.
Blick, 408 F.3d 162, 170 (4th Cir. 2005), Lyons should not be held
to the waiver of appellate rights in his plea agreement. Lyons,
informed of his right to file a pro se brief, has not done so. The
Government, in a response to Lyons’s supplemental brief, asserts
that the waiver of appellate rights should be enforced.
A defendant may waive his right to appeal as part of a
plea agreement. United States v. Wiggins, 905 F.2d 51, 53 (4th
Cir. 1990). However, the waiver must be knowing and voluntary.
United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000). This
court reviews de novo the validity of a waiver. United States v.
Marin, 961 F.2d 493, 496 (4th Cir. 1992).
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In this case, Lyons agreed in his plea agreement to waive
his right to appeal on all grounds except ineffective counsel,
prosecutorial misconduct, and “the sentence, but only to the extent
defendant contests the sentence that one or more findings on
guidelines issues were inconsistent with the explicit stipulations
contained in any paragraph in the plea agreement. . . .” The
magistrate judge conducted a thorough Fed. R. Crim. P. 11 colloquy.
Lyons stated that he had discussed with his attorney his right to
appeal and agreed to waive that right with the noted exceptions.
Lyons was forty years old at the time, with a ninth grade education
and a G.E.D.
We conclude that Lyons’s waiver was knowing and voluntary. We
further hold that, in accordance with our decisions in United
States v. Johnson, 410 F.3d 137, 152-53 (4th Cir. 2005), petition
for cert. filed , __ U.S.L.W. __ (U.S. Sept. 7, 2005) (No. 05-
6215), and in Blick, 408 F.3d at 170-71, that Lyons’s waiver of his
right to appeal that was accepted prior to the Supreme Court’s
decision in United States v. Booker, 125 S. Ct. 738 (2005), is not
invalidated by the change in law effected by that decision.
Given a valid appeal waiver, the second issue under Blick
is whether the claims raised by the defendant are within the scope
of the waiver. Blick, 408 F.3d at 168. Lyons’s claim that the
district court erred in enhancing his sentence under § 851 is
clearly within the scope of the waiver. Lyons also asserts that
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the calculation of his sentencing range under the guidelines
violated stipulations in the plea agreement. However, the plea
agreement contained no stipulations constraining the guidelines
computation except a provision that the Government would recommend
the amount of methamphetamine known or reasonably foreseeable to
Lyons as 500 grams to 1.5 kilograms. That drug quantity was used
in calculating Lyons’s sentence. Therefore, we find the sentencing
claims to be within the scope of the waiver and dismiss the appeal
as to these claims.
Lyons also asserted that counsel was constitutionally
ineffective because he led Lyons to believe that the § 851
enhancement would not be pursued. Claims of ineffective assistance
are not within the scope of the waiver. However, “[i]neffective
assistance claims are not cognizable on direct appeal unless
counsel’s ineffectiveness conclusively appears on the record.”
United States v. James, 337 F.3d 387, 391 (4th Cir. 2003). Our
review of the record discloses no such conclusive evidence that
Lyons received ineffective assistance of counsel. Accordingly, we
affirm as to this claim.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore dismiss in part and affirm in part. This
court requires that counsel inform Lyons, in writing, of his right
to petition the Supreme Court of the United States for further
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review. If Lyons 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
Lyons. 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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