United States v. Nicholas Richer ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4283
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NICHOLAS RICHER,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Max O. Cogburn, Jr., District Judge. (3:18-cr-00311-MOC-DCK-7)
Submitted: November 17, 2020 Decided: November 19, 2020
Before MOTZ and KEENAN, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
William D. Auman, AUMAN LAW OFFICES, Asheville, North Carolina, for Appellant.
Jeremy Raymond Sanders, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nicholas Richer pled guilty, pursuant to a plea agreement, to conspiracy to commit
wire and mail fraud, in violation of 18 U.S.C. §§ 1349, 2326(2)(A), (B), conspiracy to
commit money laundering, in violation of 18 U.S.C. § 1956(h), and international money
laundering, in violation of 18 U.S.C. §§ 2, 1956(a)(2)(A). The district court sentenced
Richer below the advisory Sentencing Guidelines range to 51 months’ imprisonment.
Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that
there are no meritorious grounds for appeal but questioning whether trial counsel rendered
ineffective assistance and whether the prosecutor engaged in misconduct by relying on
evidence obtained from Richer’s cellular phone at sentencing in contravention of the plea
agreement. Richer was advised of his right to file a supplemental brief, but he has not done
so. We affirm.
We do not consider ineffective assistance claims on direct appeal “[u]nless an
attorney’s ineffectiveness conclusively appears on the face of the record.” United States v.
Faulls, 821 F.3d 502, 507-08 (4th Cir. 2016). “Because there is no conclusive evidence of
ineffective assistance on the face of this record, we conclude that [Richer’s] claim should
be raised, if at all, in a 28 U.S.C. § 2255 motion.” Id. at 508. Further, our review of the
record reveals no evidence of prosecutorial misconduct. See, e.g., United States v. Benson,
957 F.3d 218, 234 (4th Cir. 2020) (noting that defendant must show “(1) the prosecutor’s
remarks or conduct were improper and (2) that such remarks or conduct prejudicially
affected [the defendant] so as to deprive him of a fair [sentencing determination]” to prevail
on claim of prosecutorial misconduct (internal quotation marks omitted)).
2
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Richer, in writing, of the right to petition the
Supreme Court of the United States for further review. If Richer 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 Richer.
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.
AFFIRMED
3