United States v. Stancil Shelley, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4876
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STANCIL FORD SHELLEY, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:11-cr-02242-TLW-1)
Submitted: June 27, 2013 Decided: July 18, 2013
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
William White, James W. Parkman, III, PARKMAN & WHITE, LLC,
Birmingham, Alabama, for Appellant. William N. Nettles, United
States Attorney, John C. Potterfield, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Stancil Ford Shelley
pled guilty to one count of mail fraud, in violation of 18
U.S.C.A. § 1341 (West Supp. 2013) and 18 U.S.C. § 2 (2006). The
district court sentenced Shelley to twenty months’ imprisonment
and ordered him to pay restitution in the amount of $945,953.39.
Shelley timely appeals, arguing that trial counsel’s ineffective
assistance rendered his guilty plea involuntary and challenging
the restitution order. For the reasons that follow, we affirm
in part and dismiss in part.
Shelley seeks to overturn his guilty plea, asserting
that he was innocent and pleaded guilty only upon counsel’s
faulty advice. * Claims of ineffective assistance of counsel
should be raised in a 28 U.S.C.A. § 2255 (West Supp. 2013)
motion rather than on direct appeal, unless the appellate record
conclusively demonstrates ineffective assistance. United States
v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). Because the
record here does not conclusively show that counsel was
constitutionally ineffective, we decline to review this claim on
direct appeal.
*
Shelley concedes that, in accepting his guilty plea, the
district court fully complied with the requirements of Rule 11
of the Federal Rules of Criminal Procedure.
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Next, Shelley seeks to challenge the district court’s
restitution order. In the plea agreement, Shelley waived his
right to appeal his conviction or sentence except in the case of
ineffective assistance or prosecutorial misconduct.
A restitution order is an aspect of a criminal
defendant’s sentence. United States v. Cohen, 459 F.3d 490,
496-97 (4th Cir. 2006). Therefore, a defendant who knowingly
and explicitly agrees to a waiver of all rights to appeal his
sentence has generally waived the right to appeal restitution.
Id. However, federal courts have no “inherent authority to
order restitution, [but instead] must rely on a statutory
source.” Id. at 498. Because a restitution order in excess of
that statutorily granted authority “is no less illegal than a
sentence of imprisonment that exceeds the statutory maximum,
appeals challenging the legality of restitution orders are
similarly outside the scope of a defendant’s otherwise valid
appeal waiver.” Id. (internal quotation marks omitted).
Here, Shelley argues that the district court erred by
failing to identify the statute under which it ordered
restitution or establishing a record for “meaningful appellate
review on the issue of restitution.” (Appellant’s Br. at 18).
At its core, Shelley’s argument challenges the substance of the
restitution order rather than the district court’s statutory
authority to order restitution. Such an argument falls within
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the scope of the appeal waiver. We therefore dismiss the appeal
to the extent that it seeks review of the restitution order.
We therefore affirm Shelley’s conviction. We dismiss
the portion of the appeal challenging the restitution order. 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 IN PART;
DISMISSED IN PART
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