United States v. Ricky Simpson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4115
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICKY NELSON SIMPSON, a/k/a Bossman,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. James C. Dever,
III, Chief District Judge. (2:14-cr-00007-D-1)
Submitted: October 20, 2015 Decided: October 22, 2015
Before MOTZ, KEENAN, and THACKER, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Sarah Jessica Farber, FARBER LAW FIRM, Raleigh, North Carolina,
for Appellant. Kristine L. Fritz, OFFICE OF THE UNITED STATES
ATTORNEY, Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricky Nelson Simpson appeals the 96-month, below-Guidelines
sentence imposed after he pled guilty, pursuant to a plea
agreement, to one count of conspiracy to distribute and possess
with intent to distribute 28 grams or more of cocaine base and
500 grams or more of cocaine, in violation of 21 U.S.C.
§§ 841(b)(1)(B), 846 (2012). Counsel has filed a brief,
pursuant to Anders v. California, 386 U.S. 738 (1967), in which
she challenges the substantive reasonableness of Simpson’s
sentence, but recognizes that Simpson waived his right to appeal
his sentence in his plea agreement. Simpson has filed a pro se
supplemental brief asserting that counsel was ineffective,
thereby resulting in the denial of his due process rights. The
Government has filed a motion to dismiss the appeal based on the
appellate waiver in Simpson’s plea agreement. We affirm in
part, and dismiss in part.
A defendant may waive the right to appeal if that waiver is
knowing and intelligent. See United States v. Poindexter, 492
F.3d 263, 270 (4th Cir. 2007). Our independent review of the
record supports the conclusion that Simpson voluntarily and
knowingly waived his right to appeal his conviction and
sentence. Thus, we conclude that the waiver is valid and
enforceable.
2
However, even a valid waiver does not waive all appellate
claims. Specifically, a valid appeal waiver does not preclude a
challenge to a sentence on the ground that it exceeds the
statutory maximum or is based on a constitutionally
impermissible factor such as race, arises from the denial of a
motion to withdraw a guilty plea based on ineffective assistance
of counsel, or relates to claims concerning a violation of the
Sixth Amendment right to counsel in proceedings following the
guilty plea. See United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005); United States v. Craig, 985 F.2d 175, 178 (4th
Cir. 1993). Moreover, the appellate waiver in Simpson’s plea
agreement did not waive: (1) any sentencing challenges he may
have if his sentence was in excess of the applicable advisory
Guidelines range established at sentencing; or (2) ineffective
assistance of counsel or prosecutorial misconduct claims not
known to Simpson at the time of his guilty plea. Simpson’s
sentence is below the Guidelines range established at sentencing
and, thus, counsel’s claim is squarely foreclosed by the
appellate waiver. Accordingly, we grant the Government’s motion
to dismiss the appeal, in part.
3
In accordance with Anders, we have reviewed the record for
any potentially meritorious, unwaived issues, * and we have found
none. We therefore dismiss the appeal in part and affirm in
part. This court requires that counsel inform Simpson, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Simpson requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move this court for leave
to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on Simpson. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid in the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
*
To the extent Simpson suggests that counsel provided
ineffective assistance, we conclude that ineffective assistance
does not conclusively appear on the record. See United States
v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
4