United States v. White , 367 F. App'x 486 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4218
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ISMALIUS JARON WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (4:06-cr-00068-FL-1)
Submitted: January 28, 2010 Decided: February 26, 2010
Before NIEMEYER, MICHAEL, and AGEE, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Richard Croutharmel, Raleigh, North Carolina, for Appellant.
Anne Margaret Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ismalius Jaron White pled guilty to conspiracy to
distribute and possess with intent to distribute more than fifty
grams of cocaine base (crack) and was sentenced to 420 months of
imprisonment. On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting there are
no meritorious grounds for appeal, but raising the following
issues: (1) whether the district court impermissibly enhanced
White’s sentence by “double counting” his prior conduct for both
criminal history and relevant conduct purposes; (2) whether
trial counsel rendered ineffective assistance; (3) whether the
Government engaged in prosecutorial misconduct; and (4) whether
White failed to execute a knowing and voluntary plea agreement.
The Government has filed a motion to dismiss the appeal of
White’s sentence, noting that he waived this right in his plea
agreement. For the reasons that follow, we dismiss in part and
affirm in part.
First, we find that White has waived his right to
appeal his sentence. A review of his plea agreement and his
Fed. R. Crim. P. 11 hearing reveals that he knowingly and
voluntarily pled guilty and waived his right to appeal his
sentence. United States v. Broughton-Jones, 71 F.3d 1143, 1146
(4th Cir. 1995). Accordingly, we grant the Government’s motion
to dismiss the appeal of White’s sentence. Therefore, we
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decline to further address counsel’s first issue raised in his
Anders brief as this issue seeks to challenge the validity of
White’s sentence.
Second, we find no ineffective assistance of trial
counsel at this juncture. 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). Instead,
ineffective assistance claims are appropriately brought pursuant
to 28 U.S.C.A. § 2255 (West Supp. 2009), to allow for adequate
development of the factual record. King, 119 F.3d at 295. A
defendant may raise an ineffective counsel claim on direct
appeal only if the record conclusively demonstrates that defense
counsel did not provide effective representation. United States
v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
Next, counsel suggests the Government engaged in
prosecutorial misconduct. As conceded by counsel, however, the
test for prosecutorial misconduct is whether the prosecution
made a remark so prejudicial that it denied the defendant a fair
trial. United States v. Mitchell, 1 F.3d 235, 240 (4th Cir.
1993). White’s guilty plea conviction simply does not lend
itself to a prosecutorial misconduct analysis, United States v.
Wilson, 135 F.3d 291, 297 (4th Cir. 1998), and we find none on
the record.
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Last, counsel questions whether White knowingly and
voluntarily executed his plea and plea agreement. As noted
above, the record reveals that White knowingly and voluntarily
pled guilty. To the extent White contests the validity of his
plea and agreement, however, he is required to show plain error,
as he failed to move in the district court to withdraw his
guilty plea. See United States v. Martinez, 277 F.3d 517, 524,
527 (4th Cir. 2002) (providing standard). White’s claim fails
as he has not shown that but for any alleged errors there was a
reasonable probability that he would not have entered the plea.
United States v. Massenburg, 564 F.3d 337, 344 (4th Cir. 2009). ∗
In accordance with Anders, we have reviewed the entire
record in this case, including the issues raised in White’s pro
se supplemental briefs, and have found no meritorious issues for
appeal. Accordingly, we affirm White’s conviction and dismiss
the appeal of his sentence. This court requires that counsel
inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move
∗
Indeed, in light of White’s extensive criminal history and
his active involvement in the case below, he would be hard
pressed to show that he misunderstood the nature and
consequences of his guilty plea.
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this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on the client.
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
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