Unpublished
Uploaded by
Scribd Government DocsUnpublished
Uploaded by
Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4421
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GONZALES MARCH, a/k/a Gun, a/k/a Gon,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia.
Cameron McGowan Currie, District
Judge. (3:08-cr-00590-CMC-6)
Submitted:
July 29, 2010
Decided:
August 20, 2010
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jessica Salvini, SALVINI & BENNETT, LLC, Greenville, South
Carolina, for Appellant.
James Chris Leventis, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Mark C. Moore, Stanley Duane
Ragsdale, Assistant United States Attorneys, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gonzales March appeals his conviction and 144 month
sentence for conspiracy to distribute and possess with intent to
distribute
cocaine
and
marijuana,
in
violation
of
21
U.S.C.
841 (2006) (Count 1) and the use of a telephone to facilitate
a drug conspiracy, in violation of 21 U.S.C. 843(b) (2006)
(Count 35).
Appellate counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), contending that there
are no meritorious issues on appeal, but questioning whether
Marchs appeal is barred by his plea waiver, and whether Marchs
sentence
is
reasonable.
March
has
filed
an
informal
brief,
questioning the validity of his guilty plea and the district
courts
application
of
the
career
offender
enhancement,
and
asserting that his original attorney was ineffective in failing
to
request
an
exception
to
Marchs
plea
waiver
due
to
the
pendency of the Supreme Courts decision in Chambers v. United
States,
129
S.
Ct.
687
(2009),
and
his
later
attorney
was
ineffective in advising March to withdraw his objection to the
application of the career offender enhancement, in light of our
subsequent decision in United States v. Rivers, 595 F.3d 558
(4th Cir. 2010).
The Government declined to file a brief.
We
affirm.
Because March did not move in the district court to
withdraw his guilty plea, we review Marchs Rule 11 hearing for
2
plain error.
United States v. Martinez, 277 F.3d 517, 525 (4th
Cir. 2002).
To establish plain error, [March] must show that
an error occurred, that the error was plain, and that the error
affected his substantial rights.
United States v. Muhammad,
478 F.3d 247, 249 (4th Cir. 2007).
Even if March satisfies
these requirements, correction of the error remains within the
courts discretion, which [the court] should not exercise unless
the error seriously affects the fairness, integrity[,] or public
reputation of judicial proceedings.
marks and citation omitted).
Id. (internal quotation
After reviewing the record, we
find that the district court complied with the mandates of Fed
R. Crim. P. 11; therefore, Marchs guilty plea was knowingly and
voluntarily made.
Additionally,
both
March
and
his
counsel
challenge
whether Marchs appeal is barred by the plea waiver contained in
Marchs plea agreement.
Where the government seeks to enforce
an appeal waiver and the appellant does not contend that the
government is in breach of its plea agreement, a waiver will be
enforced
if
the
record
shows
the
waiver
is
valid
challenged issue falls within the scope of the waiver.
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
and
the
United
However, if
the government declines to file a motion or brief raising the
waiver
issue,
we
will
perform
the
required
Anders
review.
United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).
3
Because the Government declined to raise the issue of the appeal
waiver, we will perform the required Anders review, and need not
consider the validity of Marchs appeal waiver.
Next,
Marchs
counsel
questions
whether
month sentence is substantively reasonable.
Marchs
144
Additionally, in
his pro se brief, March contends that, because failure to stop
for a blue light is not a crime of violence, the district court
committed
procedural
error
in
applying
the
career
offender
enhancement.
Regardless of whether the sentence imposed is inside
or
outside
review
the
the
[g]uidelines
sentence
under
range,
an
the
appellate
abuse-of-discretion
Gall v. United States, 552 U.S. 38, 51 (2007).
court
must
standard.
Appellate courts
are charged with reviewing sentences for both procedural and
Id.
substantive reasonableness.
In
assess
determining
whether
the
procedural
district
court
defendants advisory guidelines range.
reasonableness,
properly
we
first
calculated
the
Gall, 552 U.S. at 49-50.
We then determine whether the district court failed to consider
the
18
U.S.C.
3553(a)
(2006)
factors
and
any
arguments
presented by the parties, treated the guidelines as mandatory,
selected
sentence
based
on
clearly
erroneous
facts,
failed to sufficiently explain the selected sentence.
or
Id. at
51; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
4
Finally,
we
sentence,
review
taking
the
substantive
into
account
reasonableness
the
totality
of
of
the
the
circumstances, including the extent of any variance from the
Pauley, 511 F.3d at 473 (quoting Gall,
[g]uidelines range.
552 U.S. at 51).
Generally,
unpreserved
reviewed for plain error.
States
v.
Olano,
507
errors
in
sentencing
are
See Fed. R. Crim. P. 52(b); United
U.S.
725,
731-32
(1993).
However,
defendant may waive appellate review of sentencing error if he
raises and then knowingly withdraws an objection to the error
See United States v. Horsfall, 552
before the district court.
F.3d
1275,
1283
withdrawal
of
(11th
Cir.
objection
to
2008)
(finding
sentence
that
enhancement
defendants
precluded
appellate review of enhancement); United States v. Rodriguez,
311 F.3d 435, 437 (1st Cir. 2002) ([A] party who identifies an
issue,
and
issue.).
then
explicitly
withdraws
it,
has
waived
the
See also United States v. Chapman, 209 F. Appx 253,
268 n.4 (4th Cir. 2006) (No. 04-5010) (noting that withdrawal
of [an] objection amounts to a waiver of any complaint . . . ,
precluding us from considering the issue even under plain error
review) (argued but unpublished).
An appellant is precluded
from challenging a waived issue on appeal.
F.3d at 437.
See Rodriguez, 311
Such a waiver is distinguishable from a situation
in which a party fails to make a timely assertion of a right
5
what courts typically call a forfeiture, id. (quoting Olano,
507 U.S. at 733), which, as noted above, may be reviewed on
appeal for plain error.
Here,
the
See Olano, 507 U.S. at 733-34.
record
reflects
that
March
initially
objected to the probation officers finding that he qualified as
a career offender, contending that his conviction for failure to
stop for a blue light, in violation of South Carolina Code 565-750 (2006), was not a crime of violence.
During sentencing,
in exchange for the Governments agreement to withdraw its 21
U.S.C. 851 (2006) information, March withdrew his motion for
downward
departure
and
objection
career offender enhancement.
to
the
application
of
the
Therefore, it is clear that March
has waived this issue, and we are precluded from considering it
on appeal.
Reviewing the remainder of Marchs sentence, we find
that it is both procedurally and substantively reasonable.
In his pro se informal supplemental brief, March also
asserts
that
the
two
attorneys
who
represented
district court each were ineffective.
him
in
the
Claims of ineffective
assistance of counsel generally are not cognizable on direct
appeal.
1997).
See United States v. King, 119 F.3d 290, 295 (4th Cir.
Rather, to allow for adequate development of the record,
a defendant must ordinarily bring his claim in a 28 U.S.C.A.
2255 (West Supp. 2010) motion.
See id.; United States v.
Hoyle, 33 F.3d 415, 418 (4th Cir. 1994).
6
An exception to this
general
rule
exists
when
ineffective assistance.
the
record
conclusively
establishes
United States v. Richardson, 195 F.3d
192, 198 (4th Cir. 1999); King, 119 F.3d at 295.
Because the
record does not conclusively establish ineffectiveness of either
attorney
who
represented
March,
we
decline
to
consider
this
claim on direct appeal.
In
accordance
with
Anders,
we
have
reviewed
the
entirety of the record and find no meritorious issues on appeal.
Accordingly, we affirm the judgment of the district court.
This
court requires that counsel inform her client, in writing, of
his right to petition the Supreme Court of the United States for
further
filed,
review.
but
If
counsel
the
client
believes
requests
that
such
that
a
petition
petition
would
be
be
frivolous, then counsel may move in this court for leave to
withdraw from representation.
Counsels motion must state that
a copy thereof was served on the client.
We dispense with oral
argument because the facts and legal contentions are adequately
expressed in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
