United States v. Levar Leary ( 2022 )

USCA4 Appeal: 22-4033 Doc: 42 Filed: 08/25/2022 Pg: 1 of 4
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4033
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEVAR ANTHONY LEARY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Elizabeth City. James C. Dever III, District Judge. (2:21-cr-00005-D-1)
Submitted: August 23, 2022 Decided: August 25, 2022
Before GREGORY, Chief Judge, HEYTENS, Circuit Judge, and KEENAN, Senior Circuit
Judge.
Dismissed in part and affirmed in part by unpublished per curiam opinion.
ON BRIEF: Peter M. Wood, LAW OFFICE OF PETER WOOD, Raleigh, North
Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, Lucy Partain
Brown, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Levar Anthony Leary appeals his convictions and 300-month sentence imposed
following his guilty plea to conspiracy to distribute and possess with intent to distribute
five kilograms or more of cocaine, a quantity of cocaine base, and five grams or more of
methamphetamine, in violation of 21 U.S.C. § 846; possession with intent to distribute 500
grams or more of cocaine and five grams or more of methamphetamine, in violation of
21 U.S.C. § 841(a)(1); and conspiracy to commit money laundering, in violation of
18 U.S.C. § 1956(h). Leary’s counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), stating that there are no meritorious issues for appeal but questioning
whether Leary’s guilty plea and appeal waiver are invalid, whether trial counsel rendered
ineffective assistance, whether the district court properly calculated the Sentencing
Guidelines range, and whether the Government committed prosecutorial misconduct.
Leary has filed a pro se brief raising a variety of additional challenges to his convictions
and sentence. The Government has moved to dismiss the appeal pursuant to the appeal
waiver in Leary’s plea agreement. We affirm in part and dismiss in part.
We review the validity of an appeal waiver de novo and “will enforce the waiver if
it is valid and the issue appealed is within the scope of the waiver.” United States v. Adams,
814 F.3d 178, 182 (4th Cir. 2016). “A waiver is valid if the defendant knowingly and
intelligently agreed to waive the right to appeal.” United States v. Soloff, 993 F.3d 240,
243 (4th Cir. 2021) (internal quotation marks omitted). “Generally, if a district court
questions a defendant regarding the waiver of appellate rights during the [Fed. R. Crim. P.]
11 colloquy and the record indicates that the defendant understood the full significance of
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the waiver, the waiver is valid.” United States v. Thornsbury, 670 F.3d 532, 537 (4th Cir.
2012). Upon review of the record, including the plea agreement and the transcript of the
Rule 11 hearing, we conclude that Leary knowingly and intelligently waived his right to
appeal.
The appeal waiver does not preclude our review pursuant to Anders of the validity
of the guilty plea. See United States v. McCoy, 895 F.3d 358, 363-64 (4th Cir. 2018).
Because Leary did not seek to withdraw his guilty plea, we review the adequacy of the
Rule 11 hearing for plain error. See United States v. Williams, 811 F.3d 621, 622 (4th Cir.
2016); see also United States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014) (describing
standard). Our review of the record reveals that Leary entered his guilty plea knowingly
and voluntarily, that a factual basis supported the plea, and that his guilty plea is valid. See
Fed. R. Crim. P. 11(b); Williams, 811 F.3d at 622.
The appeal waiver forfeits Leary’s right to appeal his convictions and his sentence
on any ground but contains an explicit exception for claims of ineffective assistance of
counsel or prosecutorial misconduct unknown to Leary at the time of his guilty plea.
“Unless an attorney’s ineffectiveness conclusively appears on the face of the record, such
claims are not addressed on direct appeal.” United States v. Faulls, 821 F.3d 502, 507-08
(4th Cir. 2016). On the face of the record, there is no conclusive evidence of ineffective
assistance that would fall outside the scope of the appeal waiver. Thus, Leary’s ineffective
assistance claims should be raised, if at all, in a 28 U.S.C. § 2255 motion. See United
States v. Jordan, 952 F.3d 160, 163 n.1 (4th Cir. 2020). The available record likewise
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reveals no breach of the plea agreement or prosecutorial misconduct that would fall outside
the waiver’s scope.
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal that would fall outside the appeal waiver’s broad
compass. We therefore grant the Government’s motion to dismiss in part, dismiss the
appeal as to all issues within the waiver’s scope, and affirm the remainder of the judgment.
This court requires that counsel inform Leary, in writing, of the right to petition the
Supreme Court of the United States for further review. If Leary requests that a petition be
filed, but counsel believes that such a 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 thereof was served on Leary.
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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