Filed: Jun. 07, 2013
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4607 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. HAROLD ELLIS JACKSON, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:02-cr-00305-WDQ-1) Submitted: May 30, 2013 Decided: June 7, 2013 Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges. Dismissed in part, affirmed in part by unpublished per curiam opinion. Micha
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4607 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. HAROLD ELLIS JACKSON, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:02-cr-00305-WDQ-1) Submitted: May 30, 2013 Decided: June 7, 2013 Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges. Dismissed in part, affirmed in part by unpublished per curiam opinion. Michae..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4607
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HAROLD ELLIS JACKSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:02-cr-00305-WDQ-1)
Submitted: May 30, 2013 Decided: June 7, 2013
Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.
Dismissed in part, affirmed in part by unpublished per curiam
opinion.
Michael Lawlor, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, James G.
Warwick, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harold Ellis Jackson appeals after pleading guilty to
bank robbery, in violation of 18 U.S.C. § 2113(b) (2006), and
challenges his 151-month sentence. On appeal, Jackson contends
that his guilty plea was not knowing and voluntary because,
since he was sentenced in 2003, the law has changed and two
convictions used to qualify him as a career offender are no
longer valid predicate felonies. 1 He also argues that he
received ineffective assistance of counsel when his counsel
permitted him to plead guilty and stipulate to the career
offender designation. We dismiss in part and affirm in part.
The Government moved to dismiss the appeal based on
the waiver of appellate rights in Jackson’s written plea
agreement. As part of the plea agreement, Jackson agreed to
waive his right to “appeal whatever sentence is imposed,
including any issues that relate to the establishment of the
guideline range, reserving only the right to appeal from an
upward or downward departure from the guideline range
established at sentencing.” In the plea agreement, Jackson
admitted that he is a career offender under Guideline Section
1
The appeal was delayed, and there have been 28 U.S.C.A.
§ 2255 (West Supp. 2012) proceedings. The district court
granted Jackson’s § 2255 motion in part and permitted a belated
appeal on July 31, 2012.
2
4B1.1, because he has previously been convicted of robbery with
a deadly weapon in 1995, battery in 1990, and robbery in 1985.
The district court sentenced Jackson to 151 months’
imprisonment, at the low end of the Sentencing Guidelines range.
A criminal defendant may waive the right to appeal if
that waiver is knowing and intelligent. United States v.
Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). Generally, if
the district court fully questions a defendant regarding the
waiver of his right to appeal during a plea colloquy performed
in accordance with Fed. R. Crim. P. 11, the waiver is both valid
and enforceable. United States v. Johnson,
410 F.3d 137, 151
(4th Cir. 2005). As we recently explained, “the law ordinarily
considers a waiver knowing, intelligent, and sufficiently aware
if the defendant fully understands the nature of the right and
how it would likely apply in general in the circumstances—even
though the defendant may not know the specific detailed
consequences of invoking it.” United States v. Thornsbury,
670
F.3d 532, 537 (4th Cir.) (internal alteration, quotation marks,
and emphases omitted), cert. denied, 133 S. Ct. 196 (2012).
Whether a defendant validly waived his right to appeal is a
question of law we reviews de novo. United States v. Blick,
408
F.3d 162, 168 (4th Cir. 2005).
Jackson’s counsel did not contest the Government’s
assertions in the motion to dismiss that Jackson knowingly and
3
voluntarily waived the right to appeal. Jackson now contends
that his guilty plea was not knowingly and voluntarily made
because the Government, Jackson, and the court erroneously
agreed that Jackson was a career offender. Jackson contends
that his Maryland 1990 battery conviction and 1985 robbery
conviction do not qualify as predicate offenses under U.S.
Sentencing Guidelines Manual § 4B1.1 (2002). These arguments,
however, are within the scope of the waiver. We conclude that
the record discloses that Jackson validly waived the right to
appeal his sentence. The language of the appeal waiver is clear
and unambiguous.
However, Jackson contends that the waiver should now
be considered invalid and unenforceable because of the
beneficial change in law brought about by the decision in United
States v. Gomez, 690 F.3d 194 (4th Cir. 2012) (if an offense has
disjunctive elements that enumerate multiple categories of
crimes, at least one of which requires proof of violent force
and one which does not, a federal sentencing court may only then
apply the modified categorical approach and look beyond a
statutory definition to a limited list of judicial records found
in Taylor v. United States,
495 U.S. 575 (1990) and Shepard v.
United States,
544 U.S. 13 (2005)). Jackson argues that,
because the law has been clarified in his favor, the appeal
waiver is no longer valid. He also contends that the appeal
4
waiver does not bar a challenge to his conviction. While the
conviction is not specifically included in the waiver of
appellate rights, Jackson does not make any arguments
challenging his conviction. Instead, he only challenges the
calculation of his sentence—something he explicitly waived, and
ineffective assistance related to that claim.
We reject Jackson’s challenge to the validity of the
waiver. As we recently explained in concluding that a
defendant’s Simmons-based 2 challenge to his career offender
designation fell within the scope of an appeal waiver expressly
waiving his right to appeal a sentence falling within the
advisory Guidelines range established at sentencing, “a party
cannot ask to re-bargain the waiver of his right to appeal
because of [post-plea] changes in the law.” United States v.
Copeland, 707 F.3d 522, 529-30 (4th Cir. 2013) (internal
quotation marks and ellipsis omitted). Accordingly, we
determine that the appeal waiver is valid and enforceable as to
Jackson’s sentencing claim and dismiss the claim.
Next, Jackson argues that counsel was ineffective
during the plea negotiations phase by permitting him to
stipulate to the career offender designation. He contends that
he was prejudiced because, without the stipulation, he would
2
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011).
5
have a Guidelines range of 63 to 78 months instead of 151 to 188
months. Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal. United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). However, ineffective assistance
claims are cognizable on direct appeal if the record
conclusively establishes ineffective assistance. Massaro v.
United States,
538 U.S. 1690, 1693-94 (2003); United States v.
Richardson,
195 F.3d 192, 198 (4th Cir. 1999).
To demonstrate ineffective assistance, a defendant
must show that his “counsel’s representation fell below an
objective standard of reasonableness,” and that the error was
“prejudicial to the defense” such that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 688, 692, 694 (1984).
Jackson contends that counsel should have raised a Shepard-based
challenge and objected to the career offender enhancement.
Shepard was not decided until 2005, approximately two years
after Jackson was convicted. At the time Jackson was sentenced,
it is undisputed that all his predicate felonies qualified.
Therefore, there was no reason for counsel to raise such a
challenge, and the result would not have been different.
Consequently, there is no ineffective assistance appearing
conclusively on the record.
6
We therefore grant in part the Government’s motion to
dismiss the appeal and dismiss the portion of the appeal
challenging Jackson’s sentence. We affirm the portion of the
appeal raising ineffective assistance of counsel. 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.
DISMISSED IN PART;
AFFIRMED IN PART
7
