United States v. Stye Coleman , 469 F. App'x 187 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4779
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STYE LAMAR COLEMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Terrence W. Boyle,
District Judge. (4:10-cr-00050-BO-1)
Submitted: March 13, 2012 Decided: March 15, 2012
Before WILKINSON and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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:
Stye Lamar Coleman pled guilty, with the benefit of a
written plea agreement, to conspiring to distribute more than
fifty grams of cocaine base and a quantity of cocaine, in
violation of 21 U.S.C. § 846 (2006), and possessing a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A) (2006). The district court sentenced
Coleman as a career offender to a total term of 240 months’
imprisonment, and, pursuant to the plea agreement, the
Government moved to dismiss the remaining six drug and weapons
charges pending against Coleman. On appeal, Coleman challenges
the sufficiency of a count in the indictment that the court
dismissed at sentencing and his classification as a career
offender. ∗ The Government has moved to dismiss the appeal.
Upon review of the plea agreement and the transcript
of the Fed. R. Crim. P. 11 hearing, we conclude Coleman
knowingly and voluntarily waived his right to appeal his
sentence and that the challenge to the career offender
∗
To the extent that Coleman also suggests that his trial
counsel did not adequately advise him regarding the sentence he
could receive, we decline to consider that claim on direct
appeal as the record does not conclusively establish ineffective
assistance. Rather, any such claim must be brought in a post-
conviction proceeding pursuant to 28 U.S.C. § 2255 (West Supp.
2011). See United States v. King, 119 F.3d 290, 295 (4th Cir.
1997).
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classification Coleman seeks to raise falls squarely within the
scope of his waiver of appellate rights. Accordingly, we grant
in part the Government’s motion to dismiss and dismiss the
appeal of the sentence.
Moving to Coleman’s challenge to the sufficiency of
the indictment, this claim is not barred by the appellate waiver
provision in the plea agreement. Although Coleman asserts for
the first time on appeal that he did not have the requisite
predicate felony offense to support the now-dismissed felon-in-
possession charge, his “failure to raise this argument before
trial does not waive it . . . [b]ut . . . restricts our review
to plain error.” United States v. King, 628 F.3d 693, 699 (4th
Cir. 2011). We conclude that there was no error, plain or
otherwise, in the indictment.
Accordingly, we grant the Government’s motion to
dismiss in part and dismiss the appeal of the sentence. We deny
the motion to dismiss in part and affirm Coleman’s convictions.
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.
AFFIRMED IN PART;
DISMISSED IN PART
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