United States v. Christopher Michael Salisbury

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4048
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER MICHAEL SALISBURY,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
George L. Russell, III, District Judge. (1:15-cr-00621-GLR-1)
Submitted: January 26, 2018 Decided: January 30, 2018
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam opinion.
Nancy S. Forster, FORSTER, JOHNSON & LECOMPTE, Baltimore, Maryland, for
Appellant. Paul E. Budlow, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Michael Salisbury pled guilty, pursuant to a written plea agreement, to
two counts of production of child pornography, 18 U.S.C. § 2251(a) (2012), and was
sentenced to a total term of 60 years’ imprisonment, within the advisory Sentencing
Guidelines range. Counsel has filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), stating that there are no meritorious grounds for appeal but questioning
whether Salisbury was coerced by his attorney into pleading guilty. Salisbury has filed a
pro se supplemental brief raising two claims: that his sentence on the two counts violates
Double Jeopardy, and that his conviction “per the plea” violates the “Grand Jury Clause.”
The Government has moved to dismiss the appeal based on the appeal waiver in the plea
agreement. We grant the motion in part, dismiss the appeal in part, and affirm in part.
Once an appeal waiver is invoked by the Government, “[w]e review the validity of
[the] waiver de novo, and will enforce the waiver if it is valid and the issue appealed is
within the scope of the waiver.” United States v. Copeland, 707 F.3d 522, 528 (4th Cir.
2013) (internal quotation marks omitted). “The validity of an appeal waiver depends on
whether the defendant knowingly and intelligently agreed to waive the right to appeal.”
United States v. Blick, 408 F.3d 162, 169 (4th Cir. 2005). To determine whether a waiver
is knowing and intelligent, we examine “the totality of the circumstances,” which
includes “the background, experience, and conduct of the accused.” Id. (internal
quotation marks omitted). “Generally, if a district court questions a defendant regarding
the waiver of appellate rights during the [Fed. R. Crim. P. 11] colloquy and the record
indicates that the defendant understood the full significance of the waiver, the waiver is
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valid.” Copeland, 707 F.3d at 528 (internal quotation marks omitted). Our review of the
record confirms that, under the totality of the circumstances, Salisbury’s waiver of his
appellate rights was knowing and voluntary and, therefore, the waiver is valid and
enforceable with respect to the claims raised by Salisbury in his supplemental informal.
Although Salisbury’s ineffective assistance claim may not be waived, see United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005), it is not cognizable on direct appeal
“[b]ecause there is no conclusive evidence of ineffective assistance on the face of this
record.” United States v. Faulls, 821 F.3d 502, 508 (4th Cir. 2016). Therefore, any such
claim “should be raised, if at all, in a 28 U.S.C. § 2255 motion.” Id.
In accordance with Anders, we have reviewed the record in this case and have
found no unwaived and potentially meritorious issues for appeal. To the extent
Salisbury’s and counsel’s claims are within the scope of the valid and enforceable appeal
waiver, we grant the Government’s motion to dismiss the appeal. We otherwise affirm
the district court's judgment.
This court requires that counsel inform Salisbury, in writing, of the right to
petition the Supreme Court of the United States for further review. If Salisbury 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 Salisbury. 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 the decisional process.
AFFIRMED IN PART; DISMISSED IN PART
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