United States v. Sims , 410 F. App'x 666 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4944
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY ANTONIO SIMS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:08-cr-00116-MR-1)
Argued: October 29, 2010 Decided: February 1, 2011
Before TRAXLER, Chief Judge, and DUNCAN and KEENAN, Circuit
Judges.
Affirmed in part and dismissed in part without prejudice by
unpublished opinion. Judge Keenan wrote the opinion, in which
Chief Judge Traxler and Judge Duncan joined.
ARGUED: Faith Bushnaq, BUSHNAQ LAW OFFICE, PLLC, Charlotte,
North Carolina, for Appellant. David Alan Brown, Sr., OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee. ON BRIEF: Anne M. Tompkins, United States Attorney,
Adam Morris, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
KEENAN, Circuit Judge:
Anthony Antonio Sims pleaded guilty to unlawfully
possessing a firearm as a felon, in violation of 18 U.S.C. §
922(g)(1). In conjunction with his guilty plea, Sims executed a
plea agreement that contained a waiver provision limiting his
right to appeal his conviction and sentence. As part of Sims’
sentence, the district court imposed a special condition of
supervised release requiring that he register as a sex offender
upon his release from prison.
On appeal, Sims argues that his counsel was ineffective by
failing to object to the district court’s imposition of this sex
offender registration requirement, and that the district court
committed plain error by imposing such a requirement not
authorized by law. Although Sims’ ineffective assistance of
counsel argument is not precluded by his appeal waiver, we hold
that this issue is not ripe for review on direct appeal.
Accordingly, we dismiss that portion of Sims’ appeal without
prejudice. We also hold that Sims’ appeal waiver does not bar
him from challenging the district court’s imposition of the sex
offender registration requirement. However, we conclude on the
merits of this issue that the district court did not commit
plain error in imposing this condition of supervised release.
2
I.
The record in the district court showed that Sims was
involved in an altercation with police, during which he stated
that he had a firearm on his person. Sims ultimately was
arrested, and a search of his person revealed a .38 caliber
revolver in his rear pants pocket. A grand jury indicted Sims
for possession of a firearm by a felon, in violation of 18
U.S.C. § 922(g)(1). Sims agreed to plead guilty to that charge,
and executed a written plea agreement in which he agreed to
waive his right to appeal his conviction or sentence, except for
claims of ineffective assistance of counsel or prosecutorial
misconduct.
The presentence investigation report prepared after Sims’
plea contained a recommendation that Sims should be designated
as an armed career criminal under 18 U.S.C. § 924(e), based on
four predicate offenses that purportedly qualified as crimes of
violence. The fourth of these offenses was a conviction in
South Carolina in 2005 for “Assault and Battery of a High
Aggravated Nature/Indecent Liberties with Female” (the 2005
South Carolina offense). The victim of that crime was a minor.
After Sims entered a plea of no contest to the 2005 South
Carolina offense, the prosecution agreed not to pursue an
additional charge of assault with intent to commit criminal
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sexual conduct with a minor, second degree. 1 As part of his
sentence for the 2005 South Carolina offense, Sims was required
to register as a “child abuser” in South Carolina.
Although Sims’ trial counsel filed written objections to
the presentence report on eight different grounds, none of those
grounds related to Sims’ prior offenses. Thus, Sims did not
dispute any fact or raise any legal issue with respect to his
conviction for the 2005 South Carolina offense, including that
the conduct underlying the conviction involved indecent
liberties with a female, or that he was ordered to register as a
“child abuser” in South Carolina as a result of the conviction.
The district court accepted Sims’ guilty plea to the
firearm charge and held a sentencing hearing, at which the court
sentenced Sims to a term of 180 months’ imprisonment, at the low
end of Sims’ guidelines range of 180 to 210 months’
imprisonment. In addition to the 180-month prison term, the
district court also required Sims, as a special condition of
1
According to the presentence report, the indictment for
the 2005 South Carolina offense alleged that Sims “willfully and
unlawfully commit[ted] sexual battery upon . . . a minor who
was 12 years old at the time of the incident, by the insertion
of all or part of his finger into the vagina of the minor
victim.” However, Sims argues that the record in this case does
not shed light on the factual basis for Sims’ plea in the South
Carolina case, including whether the charged conduct described
above was, in fact, the offense conduct for which Sims was
convicted.
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supervised release, to register as a sex offender in each
jurisdiction where Sims resides or is employed following his
release from prison. 2 In ordering this special condition of
supervised release, the district court stated that the
requirement was “[b]ased upon the defendant’s prior South
Carolina sexual assault conviction.” Sims’ trial counsel did
not object to the district court’s imposition of this special
condition of supervised release.
II.
Sims’ arguments on appeal relate solely to the district
court’s imposition of the sex offender registration requirement
as a condition of his supervised release. Sims contends that he
was deprived of the effective assistance of counsel because his
trial counsel did not object to the district court’s decision to
include this requirement as part of his sentence. Sims also
asserts that the district court committed plain error in
imposing this special condition.
In response, the government contends that Sims’ ineffective
assistance of counsel argument is not ripe for review on direct
2
Additionally, the district court required Sims upon his
release to register as a sex offender in North Carolina, the
jurisdiction in which he was convicted of the firearms offense,
even if he does not reside or work in North Carolina following
his release.
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appeal, because the record fails to disclose the reason trial
counsel did not object to the district court’s inclusion of the
sex offender registration requirement as part of Sims’ sentence. 3
The government further notes that ineffective assistance of
counsel arguments ordinarily are adjudicated in a habeas corpus
motion brought pursuant to 28 U.S.C. § 2255. We agree with the
government’s argument.
We will not reach the merits of an ineffective assistance
counsel argument on direct appeal unless it “conclusively
appears” from the record that the defendant’s counsel failed to
provide effective representation. United States v. Richardson,
195 F.3d 192, 198 (4th Cir. 1999) (citation omitted). After
reviewing the record in this case, we cannot say that the record
conclusively shows that Sims’ trial counsel was ineffective. Of
particular significance, we observe that Sims’ trial counsel has
not had the opportunity to explain whether she refrained from
making an objection for strategic reasons, or had another basis
for failing to make this objection in the district court.
Because it does not “conclusively appear[]” from the record
that Sims’ trial counsel failed to provide effective
representation, we hold that Sims’ ineffective assistance of
3
The government concedes that Sims’ appeal waiver does not
prevent him from arguing that his trial counsel was ineffective.
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counsel argument is not ripe for review on direct appeal. See
id. We therefore dismiss without prejudice this portion of
Sims’ appeal.
Sims next argues that the district court committed plain
error in imposing a sex offender registration requirement as a
term of his supervised release, because that special condition
is not authorized by law when a defendant is sentenced for a
firearm conviction under 18 U.S.C. § 922(g)(1). In response,
the government raises a procedural issue, contending that Sims
is barred from raising this argument on appeal because of the
appeal waiver contained in his plea agreement that exempts only
claims of ineffective assistance of counsel and prosecutorial
misconduct. We disagree with the government on this issue.
It is well established that a defendant, as part of a plea
agreement, may waive his right to appeal his sentence provided
that the waiver is made knowingly and voluntarily. United
States v. Wessells, 936 F.2d 165, 167 (4th Cir. 1991). We
ordinarily interpret a waiver provision in a plea agreement
according to the agreement’s plain language. United States v.
Holbrook, 368 F.3d 415, 420 (4th Cir. 2004), vacated on other
grounds, 545 U.S. 1125 (2005). However, this court and other
courts of appeal on occasion have recognized exceptions to this
general rule, declining to enforce appeal waivers under certain
circumstances. See, e.g., United States v. Marin, 961 F.2d 493,
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496 (4th Cir. 1992) (noting that a defendant cannot waive his
right to appeal a sentence that was imposed in excess of the
maximum penalty provided by statute or that was based on a
constitutionally impermissible factor); United States v. Bownes,
405 F.3d 634, 637 (7th Cir. 2005) (discussing various
circumstances recognized by courts of appeal in which appeal
waivers will not be enforced); United States v. Johnson, 347
F.3d 412, 415 (2d Cir. 2003) (declining to enforce appeal waiver
because defendant argued on appeal that his sentence rested
impermissibly on his financial situation and inability to pay
restitution).
In United States v. Broughton-Jones, 71 F.3d 1143, 1145
(4th Cir. 1995), we held that a defendant’s valid waiver of her
right to appeal her sentence did not bar her from contesting the
district court’s restitution order, which the defendant claimed
was not authorized by the Victim and Witness Protection Act. We
characterized the restitution order as “illegal,” in the same
sense that a sentence of imprisonment exceeding the statutory
maximum penalty is illegal. Id. at 1147. We held that the
defendant’s argument concerning the illegality of the
restitution order therefore was outside the scope of the
defendant’s appeal waiver as a matter of law. Id.Here, Sims contends that the sex offender registration
requirement imposed by the district court is similarly
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“illegal,” and thus is outside the scope of his appeal waiver.
Based on our holding in Broughton-Jones, we agree that Sims’
argument challenging the imposition of the registration
requirement is not subject to the appeal waiver provision in his
plea agreement.
Addressing the merits of this issue, Sims concedes that his
argument is subject to review only for plain error, because he
did not object in the district court to the imposition of the
sex offender registration requirement. To establish plain
error, Sims must demonstrate that: (1) the district court erred;
(2) the error was plain; (3) the error affected Sims’
substantial rights; and (4) the error seriously affects the
fairness, integrity, or public reputation of judicial
proceedings. United States v. Olano, 507 U.S. 725, 731-32, 736
(1993).
With these principles in mind, we reject Sims’ argument
that the district court lacked authority to require him to
register as a sex offender as a special condition of his
supervised release. Under 18 U.S.C. § 3583(d), a sentencing
court has the discretion to impose a condition of supervised
release so long as that condition is “reasonably related” to
certain of the factors specified in 18 U.S.C. § 3553. These
factors include, among others, “the history and characteristics
of the defendant.” 18 U.S.C. § 3553(a)(1).
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The district court did not commit plain error in imposing
the sex offender registration requirement because that condition
was “reasonably related” to Sims’ “history and characteristics.”
We note that the district court ordered this special condition
“[b]ased upon the defendant’s prior South Carolina sexual
assault conviction.” We conclude without difficulty that Sims’
conviction for the 2005 South Carolina offense provided a
sufficient nexus to the sex offender registration requirement
that the district court imposed in this case. See United States
v. Smart, 472 F.3d 556, 559-60 (8th Cir. 2006) (affirming sex
offender registration requirement following defendant’s
conviction of a firearms offense based on defendant’s past
conviction of a sex offense); see also United States v. Wesley,
81 F.3d 482, 484 (4th Cir. 1996) (affirming special condition
prohibiting alcohol consumption following defendant’s conviction
for embezzlement based on defendant’s past convictions for
driving under the influence and for being intoxicated and
disruptive).
We are not persuaded by Sims’ argument that the record
fails to establish that the 2005 South Carolina offense involved
conduct of a sexual nature or that the victim was a minor.
Under a heading in the presentence report labeled “Conviction,”
Sims’ offense is identified as “Assault and Battery of a High
and Aggravated Nature/Indecent Liberties with Female.”
10
(Emphasis added). This description reveals that the 2005 South
Carolina offense for which Sims was convicted involved unlawful
conduct of a sexual nature with a female.
It is also clear that the victim in that case was a minor
because the South Carolina court required Sims to register as a
“child abuser” as part of his sentence. Because Sims did not
object to these representations in the presentence report, the
district court was entitled to accept as fact that the 2005
South Carolina offense involved a sexual assault on a minor
victim. See Fed. R. Crim. P. 32(i)(3)(A) (“At sentencing, the
court . . . may accept any undisputed portion of the presentence
report as a finding of fact.”). Moreover, Sims does not argue
on appeal that this factual information is erroneous.
Therefore, we hold that the district court did not commit plain
error in determining that the 2005 South Carolina offense was a
“sexual assault conviction.” See United States v. Wells, 163
F.3d 889, 900 (4th Cir. 1998) (holding that plain error standard
applies to factual information in presentence report to which
defendant did not object).
Our conclusion is not altered by Sims’ additional argument
that he should not be subject to this registration requirement
because, under North Carolina, South Carolina, and federal law,
his convictions do not trigger a mandatory registration
requirement. Even if Sims’ characterization of the various laws
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of these jurisdictions is correct, the district court
nevertheless had discretion under 18 U.S.C. § 3553(a) and §
3583(d) to order Sims to register as a sex offender upon his
release from prison. Thus, the district court’s discretionary
authority under these provisions renders it irrelevant whether
any state or federal statute would have required Sims to
register independent of the district court’s order.
Finally, we reject Sims’ argument that the district court
did not explain adequately its reason for imposing the sex
offender registration requirement. During the sentencing
hearing, the district court prefaced its imposition of this
requirement by stating that it was “[b]ased” on Sims’ prior
South Carolina sexual assault conviction. The district court
also identified the docket number for the 2005 South Carolina
offense. Given the obvious connection between the conduct
involved in that conviction and the requirement that Sims
register as a sex offender, we conclude under the plain error
standard that the district court provided an adequate
explanation for imposing this special condition of supervised
release.
For these reasons, we dismiss without prejudice Sims’
argument that his trial counsel provided ineffective assistance,
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and we affirm the district court’s sentence requiring Sims to
register as a sex offender upon his release from prison.
AFFIRMED IN PART AND DISMISSED
IN PART WITHOUT PREJUDICE
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