United States v. Jason Medlyn , 583 F. App'x 119 ( 2014 )


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  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 13-4958
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    JASON LEMAR MEDLYN,
    Defendant – Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh.    Malcolm J. Howard,
    Senior District Judge. (5:13-cr-00006-H-1)
    Submitted:   August 28, 2014                 Decided:   September 5, 2014
    Before WILKINSON, KING, and GREGORY, Circuit Judges.
    Affirmed in part; dismissed in part by unpublished per curiam
    opinion.
    Mark R. Sigmon, GRAEBE HANNA & SULLIVAN, PLLC, 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    Unpublished opinions are not binding precedent in this circuit.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:
    Jason Lemar Medlyn pled guilty, in accordance with a
    written      plea     agreement,     to    conspiracy        to    possess       a    stolen
    firearm and ammunition, in violation of 18 U.S.C. § 371 (2012)
    (Count One); possession of firearms in a school zone, and aiding
    and abetting, in violation of 18 U.S.C. §§ 922(q), 924(a)(2), 2
    (2012) (Count Three); and possession of firearms and ammunition
    by a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924 (2012)
    (Count    Five).        Medlyn     was    sentenced    to    consecutive         terms    of
    sixty months on Count One, sixty months on Count Three, and 120
    months    on     Count    Five,      for    a   total       term    of     240       months’
    imprisonment.         Medlyn timely appealed.
    Medlyn’s attorney has filed a brief pursuant to Anders
    v.   California,       
    386 U.S. 738
        (1967),    finding       no    meritorious
    grounds for appeal, but questioning whether Medlyn’s sentence
    was reasonable, whether venue was proper in the Eastern District
    of   North     Carolina      for   Count    Three,     and    whether      counsel       was
    ineffective for inadequately explaining the potential sentence
    Medlyn faced and failing to challenge venue for Count Three or
    object    to    the    presentence       investigation       report.         Medlyn      was
    advised of his right to file a pro se supplemental brief but did
    not file such a brief.             The Government has moved to dismiss the
    appeal based on a waiver-of-appellate-rights provision in the
    plea agreement.         We affirm in part and dismiss in part.
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    We review de novo the validity of an appeal waiver.
    United States v. Copeland, 
    707 F.3d 522
    , 528 (4th Cir.), cert.
    denied, 
    134 S. Ct. 126
    (2013).                         “We generally will enforce a
    waiver . . . if the record establishes that the waiver is valid
    and that the issue being appealed is within the scope of the
    waiver.”        United States v. Thornsbury, 
    670 F.3d 532
    , 537 (4th
    Cir. 2012) (internal quotation marks omitted).                           A defendant’s
    waiver     is     valid        if    he      agreed        to   it     “knowingly     and
    intelligently.”          United States v. Manigan, 
    592 F.3d 621
    , 627
    (4th Cir. 2010).
    Our review of the record leads us to conclude that
    Medlyn knowingly and voluntarily waived the right to appeal his
    sentence,       except    for       claims        of     ineffective    assistance    or
    prosecutorial misconduct not known to Medlyn at the time of his
    guilty plea.       We therefore grant in part the Government’s motion
    to dismiss and dismiss the appeal of his sentence to the extent
    that his claims do not rest on grounds of ineffective assistance
    of counsel.       Because the waiver does not preclude our review of
    Medlyn’s convictions or his challenges to his sentence based on
    ineffective assistance, we deny the motion to dismiss in part.
    Turning       to    Medlyn’s       challenge        to   venue   for    Count
    Three, the issue is waived because counsel did not object to
    venue in the district court.                   United States v. Ebersole, 
    411 F.3d 517
    , 527-28 (4th Cir. 2005); United States v. Stewart, 256
    
    3 F.3d 231
    , 238 (4th Cir. 2001).                The remainder of Medlyn’s claims
    assert    ineffective      assistance         of   counsel.             Such    claims     “are
    generally not cognizable on direct appeal.”                             United States v.
    Benton, 
    523 F.3d 424
    , 435 (4th Cir. 2008); United States v.
    King, 
    119 F.3d 290
    , 295 (4th Cir. 1997).                      Instead, to allow for
    adequate development of the record, a defendant must ordinarily
    bring his ineffective assistance claims in a 28 U.S.C. § 2255
    (2012)    motion.        
    King, 119 F.3d at 295
    .          However,      we    may
    entertain      such    claims    on     direct     appeal         if    “it    conclusively
    appears from the record that defense counsel did not provide
    effective      representation.”          United        States      v.    Richardson,        
    195 F.3d 192
    ,     198    (4th    Cir.    1999).           Because        Medlyn’s      alleged
    ineffective assistance of counsel claims are not conclusive on
    the record, we decline to address them in this appeal.
    Pursuant to Anders, we have reviewed the entire record
    for    meritorious,      nonwaived       issues        and    have       found    none.      We
    therefore      affirm    in    part    and    dismiss        in    part.         This    court
    requires that counsel inform Medlyn, in writing, of his right to
    petition    the    Supreme      Court    of      the    United         State    for   further
    review.     If Medlyn requests that such a petition be filed, but
    counsel    believes      that    the    petition        would      be    frivolous,        then
    counsel    may    move    in    this    court      for    leave        to     withdraw     from
    representation.         Counsel’s motion must state that a copy of the
    motion was served on Medlyn.                  We dispense with oral argument
    4
    because the facts and legal contentions are adequately presented
    in the materials before this court and argument would not aid
    the decisional process.
    AFFIRMED IN PART;
    DISMISSED IN PART
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