Filed: Apr. 26, 2012
Latest Update: Mar. 26, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4410 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. LLOYD BRIDGES WALLACE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:08-cr-00135-BR-1) Submitted: March 30, 2012 Decided: April 26, 2012 Before NIEMEYER, MOTZ, and KEENAN, Circuit Judges. Dismissed in part, affirmed in part by unpublished per curiam op
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4410 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. LLOYD BRIDGES WALLACE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:08-cr-00135-BR-1) Submitted: March 30, 2012 Decided: April 26, 2012 Before NIEMEYER, MOTZ, and KEENAN, Circuit Judges. Dismissed in part, affirmed in part by unpublished per curiam opi..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4410
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LLOYD BRIDGES WALLACE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:08-cr-00135-BR-1)
Submitted: March 30, 2012 Decided: April 26, 2012
Before NIEMEYER, MOTZ, and KEENAN, Circuit Judges.
Dismissed in part, affirmed in part by unpublished per curiam
opinion.
Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for
Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lloyd Bridges Wallace pled guilty, pursuant to a plea
agreement, to possession of stolen mail, in violation of 18
U.S.C. 1708 (2006) and aggravated identity theft, in violation
of 18 U.S.C. 1028A (2006). He appeals the judgment entered after
re-sentencing upon remand. In accordance with Anders v.
California, 386 U.S. 738 (1967), Wallace’s attorney has filed a
brief certifying that there are no meritorious issues for appeal
but questioning whether the district court erred in failing to
dismiss the aggravated identity theft count, in ordering Wallace
to pay restitution to International, Inc., enhancing Wallace’s
sentence based on amount of loss, and whether counsel was
ineffective in failing to argue the above issues at
re-sentencing and in failing to raise changes in the aggravated
identity theft statute in the Fed. R. Crim. P. 35(a) motion.
Wallace filed a pro se supplemental brief raising similar
challenges. The Government moved to dismiss Wallace’s appeal
based on his appellate waiver. For the following reasons, we
dismiss in part and affirm in part.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006). United
States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). A valid
waiver will preclude appeal of a given issue if the issue is
within the scope of the waiver. United States v. Blick, 408
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F.3d 162, 168 (4th Cir. 2005). Whether a defendant validly
waived his right to appeal is a question of law that we review
de novo. Id.
“The validity of an appeal waiver depends on whether
the defendant knowingly and intelligently agreed to waive the
right to appeal.” Id. at 169. This determination, often made
based on the sufficiency of the plea colloquy and whether the
district court questioned the defendant about the appeal waiver,
ultimately turns on an evaluation of the totality of the
circumstances. Id. These circumstances include all of “the
particular facts and circumstances surrounding [the] case,
including the background, experience, and conduct of the
accused.” Id. (internal quotation marks omitted).
Here, a review of the record indicates that the
district court fully complied with Rule 11 when accepting
Wallace’s plea and specifically reviewed the terms of his plea
agreement with him, including his appellate waiver. Wallace
does not attempt to challenge the voluntariness of his plea.
Given no indication in the record to the contrary, we find that
Wallace’s waiver of appellate rights is valid and enforceable.
Accordingly, we grant the Government’s motion to dismiss
Wallace’s appeal of any issues covered by the waiver. These
include all sentencing issues and the claim that the district
court should have dismissed the aggravated identity theft count.
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We find, however, that Wallace’s appellate waiver does not
prevent our review of his ineffective assistance of counsel
claims. We therefore deny the Government’s motion to dismiss
Wallace’s appeal as to these claims.
We affirm the judgment as to the ineffective
assistance of counsel claims because ineffective assistance does
not conclusively appear on the record. See Massaro v. United
States, 538 U.S. 1690, 1693-94 (2003); United States v.
Richardson,
195 F.3d 192, 198 (4th Cir. 1999) (ineffective
assistance claims are not cognizable on direct appeal unless the
record conclusively establishes ineffective assistance).
In accordance with Anders, we have reviewed the record
in this case, mindful of the scope of the appellate waiver, and
have found no meritorious issues for appeal. This court
requires that counsel inform Wallace, in writing, of his right
to petition the Supreme Court of the United States for further
review. If Wallace requests that a petition be filed, but
counsel believes that such a petition would be frivolous,
counsel may move for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Wallace. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
DISMISSED IN PART;
AFFIRMED IN PART
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