United States v. Eric Mcfadden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 10 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 08-50370
Plaintiff - Appellee, D.C. No. 2:04-cr-00028-GPS-1
v.
REDACTED MEMORANDUM *
ERIC MCFADDEN,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George P. Schiavelli, District Judge, Presiding
Argued and Submitted April 8, 2010
Pasadena, California
Before: SILVERMAN and GRABER, Circuit Judges, and SCULLIN, ** District
Judge.
Defendant appeals the 240-month sentence that the district court imposed
following his guilty plea to distribution of cocaine base (crack cocaine) in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). We have jurisdiction pursuant to 28
*
An unredacted Memorandum has been filed contemporaneously. This disposition
is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
**
The Honorable Frederick J. Scullin, Jr., Senior United States District Judge for
the Northern District of New York, sitting by designation.
U.S.C. §§ 1291 and 1294. For the following reasons, we dismiss Defendant's
appeal.
Defendant knowingly and voluntarily entered into a plea agreement
containing a waiver of appellate rights. "A defendant's waiver of his appellate
rights is enforceable if (1) the language of the waiver encompasses his right to
appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily
made." United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005). Even
when a waiver is knowing and voluntary, if the government breaches the plea
agreement, the defendant is released from his promise not to appeal. See United
States v. Gonzalez, 16 F.3d 985, 990 (9th Cir. 1993).
In the present matter, the waiver provided that "Defendant gives up the right
to appeal any sentence imposed by the Court, and the manner in which the
sentence is determined, provided that the sentence is within the statutory maximum
specified in paragraph 4 [life imprisonment] and is constitutional." The waiver is
clear and unambiguous. Defendant gave up the right to appeal any sentence below
the statutory maximum – life imprisonment – so long as the sentence imposed was
constitutional. The district court applied the relevant factors and sentenced
Defendant to a term of incarceration twenty-two months below the recommended
guideline range. Therefore, by the terms of the plea agreement, Defendant is
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foreclosed from appealing his sentence unless the Government breached the plea
agreement.
[REDACTED]
Finally, Defendant seeks direct review of his ineffective assistance of
counsel claim on the theory that he was deprived of representation by counsel at a
critical stage of the proceedings. [REDACTED]
"Ordinarily, a plea of ineffective assistance of counsel should be brought in
a collateral proceeding under 28 U.S.C. § 2255 because the appellate record often
lacks a sufficient evidentiary basis as to 'what counsel did, why it was done, and
what, if any, prejudice resulted.'" United States v. Quintero-Barraza, 78 F.3d 1344,
1347 (9th Cir. 1995) (quoting United States v. Molina, 934 F.2d 1440, 1446 (9th
Cir. 1991)). Accordingly, we will consider ineffective assistance claims on direct
review only "in the unusual cases (1) where the record on appeal is sufficiently
developed to permit determination of the issues, or (2) where the legal
representation is so inadequate that it obviously denies a defendant his Sixth
Amendment right to counsel." Jeronimo, 398 F.3d at 1156 (citing United States v.
Daychild, 357 F.3d 1082, 1095 (9th Cir. 2004)).
Neither exception applies here. [REDACTED] Moreover, nothing in the
record supports a conclusion that defense counsel's legal representation was so
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inadequate that it obviously deprived Defendant of his Sixth Amendment rights.
APPEAL DISMISSED.
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