UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-4925


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

DELMAR DESHION JACKSON,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of South Carolina, at
Greenville. Henry M. Herlong, Jr, Senior District Judge. (6:17-cr-00073-HMH-1)


Submitted: June 28, 2019                                          Decided: July 22, 2019


Before KING and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge.


Dismissed in part, affirmed in part by unpublished per curiam opinion.


David Alan Brown, Sr., Rock Hill, South Carolina, for Appellant. Sherri A. Lydon,
United States Attorney, D. Josev Brewer, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Delmar Deshion Jackson appeals from the 149-month sentence imposed for

conspiracy to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (2012).

Jackson raises several challenges to his sentence and ineffective assistance of counsel

issues. The Government asserts that the sentencing issues are barred by Jackson’s valid

appellate waiver in his plea agreement. Jackson also raises ineffective assistance of

counsel in failing to file a motion to suppress cell site location data and failing to object

to a multicount adjustment to his total offense level. We dismiss the sentencing claims

and affirm the remainder of the judgment.

       Jackson first argues that his sentence is procedurally unreasonable because it

included a multicount adjustment for a conspiracy to commit six robberies and an

allegedly insufficiently supported upward variance. The Government raises the appellate

waiver in Jackson’s plea agreement and contends that it bars Jackson’s sentencing claims.

This court reviews de novo the validity of an appeal waiver. United States v. Copeland,

, 528 (4th Cir. 2013). The court generally will enforce an appeal waiver “if

it is valid and the issue appealed is within the scope of the waiver.” United States v.

Adams, 

, 182 (4th Cir. 2016). To be valid, the appeal waiver must be both

knowing and intelligent. United States v. Thornsbury, 

, 537 (4th Cir. 2012).

“Although the validity of an appeal waiver often depends on the adequacy of the plea

colloquy, the issue ultimately is evaluated by reference to the totality of the

circumstances,” United States v. Davis, 

, 355 (4th Cir. 2012) (per curiam)

(internal quotation marks omitted), such as “the experience and conduct of the accused,

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as well as the accused’s educational background and familiarity with the terms of the plea

agreement,” 

(internal quotation marks omitted).

       In his plea agreement, Jackson waived his right to contest his sentence on appeal.

In the waiver, Jackson expressly waived the “right to contest either the conviction or the

sentence in any direct appeal or other post-conviction action.” (J.A. 57-58). The “waiver

does not apply to claims of ineffective assistance of counsel, prosecutorial misconduct, or

future changes in the law that affect the defendant’s sentence.” (J.A. 57-58). Our review

of the record does not reveal a reason to question the waiver’s validity. In view of the

totality of the circumstances, we conclude that the waiver is valid.

       Jackson’s appeal waiver broadly encompasses his right to appeal both his

conviction and sentence. However, appeal waivers do not preclude review of any issue

that cannot be waived by law, such as a claim that the sentence exceeded the statutory

maximum, that race or other constitutionally impermissible factors influenced the

sentence, or that the defendant was denied the right to counsel. See United States v.

Cohen, 

, 683 (4th Cir. 2018); see also 

(recognizing

that this court will refuse to enforce valid waiver “if doing so would result in a

miscarriage of justice”). Jackson’s sentencing issues clearly fall within the scope of the

waiver. There is no indication that any of the exceptions to the waiver of appellate rights

apply to the sentencing claims. Accordingly, we dismiss this portion of the appeal.

       Next, Jackson argues that he was denied his right to effective assistance of counsel

because counsel did not file a motion to suppress cell site location information obtained

without a search warrant. He contends that with a successful motion and the evidence

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suppressed, he would not have had to plead guilty. He also argues that he was denied

effective assistance of counsel when counsel failed to object to a multicount sentencing

enhancement.

       In United States v. Galloway, 

(4th Cir. 2014), we observed:

        It is well established that a defendant may raise a claim of ineffective
       assistance of counsel in the first instance on direct appeal if and only if it
       conclusively appears from the record that counsel did not provide effective
       assistance. Otherwise, he must raise his claim in the district court by a
       collateral challenge pursuant to 28 U.S.C. § 2255.

(alterations and internal quotation marks omitted).

       To succeed on an ineffective assistance of counsel claim, Jackson must show that:

(1) counsel’s performance was constitutionally deficient and (2) the deficient

performance was prejudicial. Strickland v. Washington, 

, 687-88, 691-92

(1984).   To satisfy Strickland’s performance prong, Jackson must demonstrate that

sentencing counsel’s representation fell below an objective standard of reasonableness

under “prevailing professional norms,” overcoming the presumption that counsel’s

allegedly unreasonable actions “might be considered sound trial strategy.” 

(internal quotation marks omitted).       Courts may bypass the performance prong and

proceed directly to the prejudice prong when it is easier to dispose of the claim for lack of

prejudice. 

.

       Jackson alleges that counsel was ineffective for failing to file a motion to suppress

cell site location information (“CSLI”) that the Government received pursuant to a court

order under 18 U.S.C. § 2703(d) (2012) of the Stored Communications Act. He claims

that counsel should have anticipated the Supreme Court’s decision in Carpenter v. United

                                              4
States, 

(2018). Previously, the Stored Communications Act authorized a

court to grant the Government access to CSLI upon a showing of “‘reasonable grounds’

for believing that the records were ‘relevant and material to an ongoing investigation.’”

(quoting 18 U.S.C. § 2703(d)). However, in Carpenter, the

Supreme Court held that, generally, the Government must obtain a warrant before

acquiring CSLI. 

counsel did not have an obligation to anticipate

Carpenter’s change in the law, counsel’s representation was not ineffective related to a

potential motion to suppress.

      Next, Jackson claims that he received ineffective assistance of counsel when

counsel did not object to a multicount adjustment in calculating his total offense level

when he pleaded guilty to a Hobbs Act conspiracy. Prejudice during sentencing is

established if the defendant shows “a reasonable probability that [he] would have

received a different sentence.” Sears v. Upton, 

, 956 (2010). Under U.S.

Sentencing Guidelines Manual § 3D1.4 (2016), the probation officer calculates the

applicable offense level for each robbery charged related to the conspiracy. Under USSG

§ 1B1.2(d), a “conviction on a count charging a conspiracy to commit more than one

offense shall be treated as if the defendant had been convicted on a separate count of

conspiracy for each offense that the defendant conspired to commit.” Counsel was not

ineffective because, even had counsel objected, the sentence was properly calculated.

Jackson cannot show on the existing record that the objection would have been successful

and that he would have received a different sentence. See 

.



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      Accordingly, we dismiss the sentencing claims as barred by the appellate waiver

and affirm the judgment as to the remaining claims. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

                                                                 DISMISSED IN PART,
                                                                 AFFIRMED IN PART




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